Tamaniyaga v Accident Compensation Corporation (Treatment Injury)

IN THE DISTRICT COURT AT TAURANGA (2018] NZACC 126 ACR 170/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ILIESA TAMANIYAGA Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 25 July 2018 Appearances: M McGhie for the appellant F Becroft for the respondent Judgment: 8 August 2018 RESERVED JUDGMENT OF JUDGE A P CHRISTIANSEN [Treatment Injury s 32 of The Accident Compensation Act 2001] Background [1] The appellant appeals the Review decision dated 14 April 2016 dismissing his application of a claim that he sustained renal failure as a result of treatment injury. As will be noted later in this judgment the grounds for appeal suggest an alternative submission claiming a failure to detect renal failure earlier than occurred. [2] Mr Tamaniyaga (the appellant) emigrated to New Zealand in 2004. Soon after his arrival he was in October 2004 admitted to Whanganui hospital. It was thought he was suffering from gout. Dr Thompson, physician, has treated the appellant since 2011. He reported the appellant had been using non-steroidal anti-inflammatory (NSAIDs) prior to his admission to Whanganui hospital and that it was unclear whether his creatinine was related to his presentation to hospital, or whether he had chronic kidney disease prior to coming to New Zealand. Dr Thompson reports the appellant giving a history of gout and NSAID use prior to coming to New Zealand. The Review "3] The Reviewer noted by his decision that the appellant's issues were previously heard upon review in June 2015 by Mr Woodhouse, who had found that ACC's decision to decline cover for the claimed renal failure was incorrectly based upon inaccurate details suggesting that the majority of medication taken by the appellant was over-the-counter purchased medication and was not prescribed, and therefore was not provided under the care or direction of a registered health provider. [4] Having quashed ACC's decision to decline cover, Mr Woodhouse directed further investigation be undertaken regarding the extent of NSAID purchases over the counter and from the appellant's chemist. The matter was then scheduled for review before Mr Barker. It was Mr Barker's decision on 14 April 2016 that the evidence did not support the appellant's claim of a sustained renal failure as a result of treatment injury. [5] Mr Barker referred to medical reports received from Mr Panlilio, nephrologist, in October 2014, and Dr Hay, renal physician, who reported on 14 October 2015. Also available was the report of Dr Thompson, specialist physician, dated 17 February 2011 to which the reviewer Mr Woodhouse had made reference. [6] Dr Thompson had reported that prior to coming to New Zealand the appellant said he had been receiving treatment "with paracetamol and possibly the occasional [NSAID]". Dr Thompson referred to a long standing reduced kidney function which had deteriorated since 2007 and noted: It is most likely that the chronic kidney disease is due to injury from [NSAID] use but there may be an element of gouty nephropathy and I cannot completely exclude an underlying low grade glomerulonephritis although I think this is much less likely. [7] A further report provided by a Dr Thompson dated 23 September 2014 noted: He (the appellant) did give a history of gout and [NSAID] drug use prior to coming to New Zealand ... Mr Tamaniyaga said that he continued to use until about three months prior to my first seeing him when he said he was first made aware of his reduced kidney function and advised not to use them. It was my understanding that this was largely, if not solely, over-the-counter use. [8] By his further report of September 2015 Mr Panlilio said the appellant was noted to have renal impairment in 2004 when he arrived in New Zealand. He noted that NSAIDs are known to cause kidney damage. In response to the question about whether kidney damage was mostly due to the underlying condition Mr Panlilio advised there was no way to tell as there was not enough data on the initial abnormal creatinine. 9] Dr Hay concluded by her report: The contribution of NSAID use in this man's progressive chronic kidney disease is impossible to quantify in my view. He had chronic kidney disease on arrival in New Zealand in 2004. The chronic kidney disease continued to progress despite essentially avoiding NSAID use from 2011 onwards. One cannot presume the NSAID use was a causative factor. In my opinion the cause of his end-stage renal failure is best described as uncertain. The NSAID product that Mr Tamaniyaga purchased over the counter over the years 2005 to 2010 is Diclofenac 25 mg - an exceedingly low dose, and his cumulative dose exposure in my opinion is insufficient to account for end-stage renal failure. [10] Dr Hay had access to a record of all prescription purchases made as discussed on behalf of the appellant. [11] Before the Reviewer, Mr Barker, it was submitted on behalf of the appellant, that . Dr Hay did not examine him. She made disparaging comments about him. ACC's decision was not made on an objective basis. ACC had initially accepted that NSAID use caused a renal failure. . Dr Hay incorrectly relied on there being evidence of chronic kidney disease on arrival in New Zealand. . The NSAIDs the appellant purchased at supermarkets was low strength. . Dr Hay used the wrong basis for determining cumulative use of NSAIDS. . Dr Hay was the only medical specialist who states that the cause of renal failure is uncertain. There is a clear causal nexus between the NSAIDs and renal failure. [12] As Mr Barker noted by his analysis of the evidence, the issue was whether the appellant had renal failure due to use of prescribed NSAIDs; the onus lying with him to prove that he had a valid claim for treatment injury; and noting the legal test was on the balance of probabilities, i.e. more likely than not. [13] Regarding the opinions of Dr Thompson it was noted the doctor indicated some uncertainty as to the question of causation. Mr Barker commented that Mr Panlilio had advised the cause was unclear but said that NSAIDs likely contributed to the renal failure, but that it was not possible to state whether those were a substantial cause. Mr Barker considered this view too was couched in uncertainty and therefore that evidence was insufficient for the appellant to prove his claim. [14] Mr Barker reached a similar conclusion regarding the opinion of Dr Hay who had advised the contribution from NSAIDs was impossible to quantify and therefore the cause of renal failure was uncertain. [15] By his conclusions Mr Barker found that the appellant did have renal failure on his arrival in New Zealand before Mr Panlilio reported that and because it was evidenced by the increased creatinine reported in October 2004, i.e. shortly after the appellant's arrival in New Zealand. Mr Barker found therefore that the renal failure had commenced before the appellant had any NSAIDS prescribed in New Zealand. Also, there was clear evidence that after arriving in New Zealand the appellant took non-prescription NSAIDs in New Zealand. He concluded therefore that the evidence at best supported that the NSAID prescription accelerated or made worse the renal failure, but there is not sufficient evidence they were the cause of it. [16] Finally, Mr Barker noted the comments of Dr Hay about whether it was appropriate to consider treatment injury for a person who was not eligible for subsidised health care. Mr Barker agreed with Mr McGhie that that was not an appropriate comment for a medical advisor to make. He said however it did not detract from the doctor's opinion. The Appeal [17] The appeal was filed on or about 25 May 2016. That appeal challenged: 1. Mr Barker's assessment of relevant legal principles including by use of the term "likely" to satisfy the "balance of probabilities" test. 2. Mistakes of fact were made, in particular by the statement that the appellant had renal failure on arrival in New Zealand and on the basis of one "unremarkable" creatinine level report. Also, it is claimed, Dr Hay used the incorrect tally of prescribed NSAIDs in her assessment of drug effects. [18] Further grounds included: 1. That ACC had accepted in November 2014 that the renal failure was caused by long-term NSAID medication. 2. That the renal specialists Dr Thompson and Dr Panlililo both considered it likely that NSAID use was a major cause of the personal injury (renal failure). 3. The reviewer found that the appellant had renal failure in 2004. 4. Chronic kidney disease was not diagnosed until 2010. [19] During 2017 there was correspondence between counsel regarding the production of further medical evidence. That included a report from Dr Voss, specialist renal physician, dated 29 November 2017, obtained by Mr McGhie on behalf of the appellant. [20] After it was read, counsel for ACC emailed Mr McGhie noting that Dr Voss's opinion was consistent with ACC's decision that the kidney condition was not caused by NSAIDs. Counsel for ACC noted then however that it appeared Mr Voss's report was being used to pursue a different claim; namely that there was a failure to diagnose the kidney condition earlier and that earlier diagnosis would have delayed the onset of the appellant's end-stage renal failure: an issue ACC counsel stated was not the subject of the appeal. [21] By memorandum filed on 27 March 2018 it was submitted on behalf of the appellant that having received the medical opinion from Dr Voss that the issue for determination by the Court now was whether an early diagnosis of the kidney illness, and appropriate treatment would have delayed the onset of the personal injury of and caused his end-stage renal failure. Counsel submitted that treatment injury can include injury caused by delay in treatment as per s 33(1)(b) and (d) of the Act. [22] Section 33 provides that a treatment injury can include a diagnosis of a person's medical condition and also by the failure to provide treatment in a timely manner. [23] However, a treatment injury does not include a personal injury that is "wholly or substantially caused by a person's underlying health condition" - s 32(2)(a) of the Act. [24] Mr McGhie submits it is the position that cover may be available where there is sufficient medical evidence to establish, on the balance of probabilities, that a timely diagnosis of treatment would have intervened to materially delay the inevitable outcome of an incurable disease by an ascertainable period of time. [25] For present purposes Mr McGhie submits, inter alia: 1. In this case the medical reports do provide some assistance despite the lack of medical records for the period 2004-2007, because there have been no opinions offered about whether a timely diagnosis might have delayed onset of renal failure; 2. The reports however do suggest alternative medical strategies could/should have followed much earlier - such as a biopsy - and that might have led to treatment focussed on the illness, and a different outcome; 3. If the underlying illness had been diagnosed earlier its highly unlikely the NSAIDs would have been prescribed, or that the appellant would have sought out Voltaren to treat his gout. [26] Counsel for ACC then noted that the claim for cover that was subject to appeal was for treatment injury caused by the use of NSAIDS, and commented that if the appellant was now contending he should have cover for a delay in diagnosis then he will need to lodge a separate claim for cover with ACC and this ACC would investigate and issue a primary decision on the same. It was not, counsel said, a matter that was live on appeal. [27] In the Court's view ACC counsel's opinion is correct. If the focus of issues has changed, and it is significant enough to warrant consideration of granting an adjournment so that further evidence may be required, then the appeal should not proceed except to examine that particular point in issue, namely whether the prescription of NSAIDs was responsible for renal failure. [28] The Court directs that the issues to be addressed by this judgment will be confined to those about whether the NSAIDs were the cause of renal failure. Considerations [29] The evidence is that the appellant received prescriptions of NSAIDs from his GP on three occasions: in 2007, 2008 and 2012. Also he received Voltaren from his pharmacist on 34 occasions from 2005 to 2010. He also obtained NSAIDs from non- treatment sources including supermarkets - but the consumption of these cannot be taken into account for the purposes of the treatment injury claimed. [30] ACC's position is that the evidence does not demonstrate a causal nexus between the prescribed NSAIDs and the appellant's renal failure. [31] Reference has already been made to ss 32 and 33 of the Act, which apply in this case. As postulated, that is until recently, the appeal has preceded on the basis that a treatment injury has occurred by the giving of treatment, i.e. NSAIDs by prescription. As earlier noted there is a shift of direction by the claim of a delay in diagnosis, for if an earlier diagnosis had been made that would have delayed the onset of the end-stage renal failure. [32] Mr McGhie speculates that there may be sufficient medical evidence to show a timely diagnosis of treatment may have avoided the appellant's present medical outcome. That, with respect, is speculative and the present evidence does not support that view. [33] This case falls short of the position identified in Robertson v ACC'. In that case cover was sought on the basis that end stage renal failure could have been delayed for up to two years if there had been a diagnosis and treatment provided in a timely fashion. "34] For reasons earlier indicated, i.e. relating to the shift of direction by the appeal following the report of Dr Voss, this judgment will focus upon the appeal originally filed, i.e. about whether the renal failure was caused by the use of NSAIDS. [35] Principle statements from prior decisions of Courts, for present purposes include: 1. The focus of the Act is upon outcomes, not on risk of injury or potential for injury but it is a risk which had potential and which was realised.2 2. Having realised what are the range of possible causes on the evidence, I reject the submission that, if any of the possible causes would be covered, it is for ACC to disprove that cause ... rather that the legal burden of establishing causation on the balance of probabilities remains on the claimant.3 [36] The requirement for a claimant to prove causation on the balance of probabilities means the probability of causation is higher than 50%, but it is not a matter of medical [2014] NZHC 762 Atkinson v ARCIS [2002] INZLR 374. Sam v ACC, Mallon J CIV 2008-485-829 [Wellington High Court, 31 October 2008]. or scientific approach because Courts can infer causation in circumstances where experts do not and this allows the Court to draw robust inferences of causation in some cases of uncertainty, but valid inferences must be based on facts supported by the evidence and not on the basis of supposition or conjecture.4 [37] In this case the Court's view is that more is needed by way of proof than the suggestion of a mere possibility that NSAIDs may have caused the appellant's renal failure. The evidence must demonstrate much more. [38] An analysis of medical reports has already been provided. In that regard, the Court agrees with ACC counsel's assessment of the report provided by Dr Thompson that it is the least helpful for present purposes, because: He said it was unclear whether the appellant had a pre-existing condition prior to coming to New Zealand in 2004, while the other specialists noted that that condition was apparent on arrival in New Zealand. It was Dr Thompson who considered causation on the basis of the appellant's entire consumption of NSAIDs. It was Dr Thompson who had suggested that the NSAIDs were a plausible cause of the damage to kidneys. Dr Thompson's report makes little comment beyond general references to the extent of the appellant's NSAID use, most of which did not pertain to those which had been prescribed. [39] The Court considers the report of Dr Panlilio to be of greater assistance. Dr Panlilio had noted that it was likely the abuse of non-steroidal medications contributed to the appellant's decline, referring to the appellant having disclosed an episode of gout in 2004 for which he took Voltaren for relief, and him saying he had been taking it on a daily basis, sometimes as much as six tablets a day at its worst. ACC v Ambros [2008] 1 NZLR 340. [40] It was Dr Panlilio who stated it was impossible to know, on the available information, the extent of the contribution of the appellant's underlying health to his renal failure. [41] Dr Hay's report has previously been commented upon. Despite the criticism identified by that comment, the Court agrees with ACC counsel's submission that Dr Hay's opinion and her careful analysis on the medical issues is not compromised. The Court adopts relevant extracts as suggested by counsel, namely: ... It remains unknown as to whether Mr Tamaniyaga was able to obtain the supplies elsewhere (for example, supermarkets, online, acquaintances). His use of NSAIDs prior to arrival in New Zealand in 2004 was also unknown. Based on the records from Unichem Whanganui Pharmacy, between 2005 to 2008 his average intake of Voltaren was 25 mg once every three to four days; between 2009 to 2010 the consumption was 25 mg most days. Only on two recorded occasions do the GP notes refer to a medically prescribed Naproxen 550mg bd - 60 tablets in 2007 and 60 tablets in 2008. No NSAID was prescribed on discharge from Whanganui Hospital in February 201 1. The first consultation with hospital physician, Dr Tom Thompson occurred on 17 February 201 1. In a follow-up letter from 12 April 2012 he refers to the patient taking Nurofen. Nurofen has not featured on the GP list of medications nor on the Unichem Pharmacy records, but clearly it was obtained somehow. The presumption being another pharmacy or supermarket was the provider as Nurofen is an over-the-counter medicine. Voltaren Rapid 25 is a pharmacist-only medicine. It is not reasonable to expect a community pharmacist to have knowledge of Mr Tamaniyaga's impaired kidney function unless Mr Tamaniyaga himself volunteered that information. [42] By consideration of the indicators in literature as to whether NSAIDs influence kidney implant/damage Dr Hay noted that by far the most common nephrotoxic effect of NSAIDs is acute deterioration in renal function, but that: ... This mechanism explains the acute but reversible changes in renal functions seen, for example, between March and April 2012 when the patient admitted taking supermarket purchased Nurofen. [43] Dr Hay found that the exercise of establishing the cause of the renal failure was speculative and the opportunity for making a precise diagnosis by way of kidney biopsy had long passed. The doctor's conclusions have been noted at paragraph [9] of this judgement. [44] Finally, there is the report of Dr Dittner who considered the reports of Drs Thompson, Panlilio and Hay. He noted: It is completely possible that the deterioration in kidney function that he [the appellant] had between then [2007] and 2014 was merely related to the slow deterioration in function that often occurs in patients with chronic kidney disease exacerbated by hypertension and obesity ... [45] As counsel submits Dr Dittner recognised that NSAIDs can cause kidney dysfunction and he accepted Dr Hays' summary of the case as being accurate. He stated that the information demonstrated that the appellant had a significant kidney injury process already occurring in 2007 and that the NSAIDs were not a significant factor in the progression of the disease. He noted the disease was already present in 2004 and he noted there was an exceedingly low dosage of NSAID found in Voltaren Rapid 25. Conclusions [46] The Court does not accept the view of Dr Hay is not objective. It does accept the endorsement provided by the report of Dr Dittner. Dr Hay's report is to be preferred because of the level of detail and analysis she has provided. [47] Mr McGhie submits the report of Dr Hay is of little assistance and says the doctor incorrectly calculated the extent of NSAID use because it does not include hospital prescribed NSAIDS, nor does it refer to prescription of Cartia by Mr Tamaniyaga's doctor. [48] Mr McGhie submits all doctors agree that renal disease was present in 2004, but that when the appellant was admitted to hospital that year, a series of tests failed to diagnose kidney disease. [49] It seems to the Court that this perspective does not assist with the present purpose to determine whether the appellant's position was attributable to the prescribed use of NSAIDs. As earlier noted, issues arising from claims of a failure to diagnose renal failure earlier. [50] The evidence is that the appellant received three prescriptions and on 34 occasions, received chemist supplied treatment between 2005 and 2011. 51] Dr Thompson's report of 17 February 2011 notes the appellant having been referred to the doctor for an assessment of "his chronic kidney disease". The report noted that soon after coming to New Zealand he had a brief admission in October 2004 with what was considered to be gout in his ankle. The doctor recorded the appellant had a long standing reduced kidney function which had deteriorated since 2007. Dr Thompson considered the appellant to be at significant risk of progression of kidney disease. It is clear the doctor was indicating a wide range of abnormalities in the appellant's condition. [52] By his report of 24 September 2014, Dr Thompson recorded: ... It is unclear whether his creatinine was related to this presentation or whether he had chronic kidney prior to coming to New Zealand. He did give a history of gout and non-steroidal anti-inflammatory drug use prior to coming to New Zealand. [53] And later: Whilst I could not conclude the possibility of another underlying kidney disorder such as low grade chronic glomerulonephritis, I feel that Mr Tamaniyaga's progressive chronic kidney disease is largely, if not primarily related long-term non-steroidal anti-inflammatory drug use and possibly hyperuricaemia. [54] Unclear from the doctor's report is why he considered NSAID use to have been an important factor. The doctor provides no reference to amounts prescribed. There does not appear to be much substance to support the conclusions drawn and the Court perceives some change in the strength of claims related to NSAID use. [55] Dr Panlilio's report of 17 October 2014 also recognises a degree of speculation by analysis. While noting that the aetiology of the appellant's chronic kidney disease was "un-elucidated" the doctor noted "it is likely that the abuse of non-steroidal medications contributed to its decline". [56] In the Court's view, this is another example of a lack of real analysis of causation and about why conclusions were reached by reference to treatments given over time. [57] In the Court's view, there is no level of analysis of these which provide a basis for support of conclusions. [58] With respect, the further report of Dr Panlilio dated 21 September 2015 adds little to the perception of determination of causation, for it speaks rather generally about outcomes due to NSAID use and about the appellant having been prescribed NSAIDs for his gout when he came to work in New Zealand in 2004. [59] In response to a question whether, in the doctor's opinion, and even though the NSAID treatment may have contributed to his physical injury, did the doctor think that the extent of the kidney damage was mostly due to his underlying condition, the doctor responded: There is no way to tell as we don't have enough data on the initial abnormal creatinine. [60] It seems, with respect, that these aforesaid reports do not persuade this Court to any other view but that of Dr Hay, who declared it was not possible to be precise about the appellant's renal diagnosis on clinical grounds and because, inter alia: Any adverse reaction from NSAID use may have been attributable to product auto with account rather than due to prescriptive use. [61] Dr Hay, as earlier noted, concluded that it could not be presumed NSAID use was a causative factor. [62] A reasonable conclusion to be drawn of the evidence provided by Dr Dittner is that it was clear that the appellant, in 2007, had less than 50% of the normal kidney function for a man of his age. Further: It is completely possible that the deterioration kidney function that he had between then and 2014 was merely related to the slow deterioration function that often occurs in patients with chronic kidney disease, exacerbated by hypertension and obesity. [63] Dr Dittner concluded: 1. It is likely that Mr Tamaniyage developed his end-stage renal failure due to progression of his chronic kidney disease. A) The likely cause of this progression cannot be determined. A renal biopsy early in presentation may have assisted but would be of no value (and dangerous) now. B) The relationship between the progression of the kidney disease cannot be determined. C) In my opinion, the use of NSAIDs was not the most significant factor in the progression of the disease. [64] It was for the purpose of assisting the appellant's case that the report from Dr Voss was obtained on 29 November 2017. Dr Voss had been supplied with copies of prior reports. [65] Noting the conflicting information and interpretation of the appellant's condition, Dr Voss reported: If the NSAIDs were alone significantly causing renal impairment and progressive chronic renal failure to end-stage in this man, one would have expected him to have presented with some abnormality in his urinary testing (Immigration in 2004 time) which has been at this time declared as being no urinary abnormality detected. Unfortunately, renal function blood tests were not done. Therefore, as I see it, the likelihood of renal failure being caused primarily principally or only by NSAID use is very low based on the documentation presented. This opinion is based on the fact that he had no urinary abnormalities in 2004 ... [66] And later: Sadly, there is not enough documentation and confirmation of clinical suspicion for various reasons in Mr Tamaniyaga's renal disease. There is inadequate information to refute his claim, and even more so less information to independently support his good health on arrival in New Zealand [67] Overall, this Court is of the view that there is a consistency in the views of Drs Voss, Dittner and Hay that there was not sufficient information to conclude at all that NSAID use was responsible for renal failure because the cause of renal failure was considered to be the outcome due to the natural progress of the disease rather than it being attributable to NSAID use. [68] It is clear to the Court that those doctors support the position adopted in opposition to that advanced on behalf of the appellant. [69] The appeal is about the appellant's claim of having sustained a personal injury when taking or receiving NSAIDs prescribed by a registered health professional and which caused injury. [70] It is claimed the appellant's renal failure was caused by his use of prescribed NSAIDs. It must be established that on the balance of probabilities that this occurred. It is a burden borne by the appellant. [71] Unfortunately, for the appellant, it is the Court's clear view that evidence of cause due to NSAID prescriptions amounts to a mere possibility only and falls far short of providing proof on a balance of probabilities basis. [72] As earlier noted herein, this judgment is confined to assessment of claims relating to the prescriptive use of NSAIDS. Recent claims now provided and asserting that a diagnosis of renal failure ought to have been provided earlier, concerns matters which are not the subject of the review hearing, nor were they the subject of the appeal that was filed. To the extent that they may have relevance is a matter that needs to be the subject of further process and investigation. It is not a matter addressed by this judgment. Judgment [73] The appeal is dismissed. Judge A P Christiansen District Court Judge Solicitors: Medico Law, Auckland, for the respondent ACR 170-16 Tamaniyaga