Parker v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 329 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JANE MARION PARKER of Temuka Appellant (Appeal No. DCA 142/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 19th day of October 1999 APPEARANCES/COUNSEL G D Fletcher for appellant B A Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The appellant lodged a claim for cover with the respondent on 28 June 1997 in respect of an injury which occurred on that day when she tripped on an unmarked judder bar and fell hurting her knees, fingers and forehead. She was admitted to the Timaru Hospital overnight as a result of the injuries. Subsequently her face was bruised and her General Practitioner indicated that he wished to see her the following week, as he was concerned about her deteriorating eyesight in her left eye. On 9 April 1998 the appellant applied for an independence allowance claiming to have lost the sight in her left eye as a result of the accident 2 Prior to making the application, the appellant had been referred to Dr M W Mair, an Ophthalmologist on 31 October 1997. In his report, Dr Mair noted that the appellant was concerned that the vision in her left eye had fallen off. His comment was "she has subretinal fluid and haemorrhage occupying the whole mauclar (sic) region up to the disc in the left eye. The R E has severe drusen degeneration." The independence allowance assessment was undertaken by Dr I J A Bell in June 1998. His conclusion was that the appellant suffered a 24% final whole person impairment but then stated "there is little doubt that the accident in question is substantially responsible for the impairment result from the covered condition. The aging (sic) process has not contributed." When it received that assessment the respondent sought a further opinion from Dr Mair which was given on 23 July 1998 in which he stated "my findings did not support association between her fall and the appearances and disabilities described." As a result of those reports the respondent notified the appellant that her claim for an independence allowance was declined because it did not consider that there was an "association between your fall and the eye problems you have experienced." The appellant applied for a review of that decision which was upheld. After the review decision was issued the appellant submitted a report from Mr WR Holmes, an Ophthalmologist, dated 8 March 1999. He related the history of the problem and then stated: 'The question at issue here is whether this is related to her accident. Obviously eighty eight years on this planet have predisposed her to these ageing changes but it could well be argued that the trauma of the fall was sufficient to initiate the first haemorrhage at the left posterior pole. We shall never know whether this is the case because she wasn't examined at that time. I think that without drawing too long a bow, you could argue the case that the fall did not precipitate something which was probably going to happen anyhow, but it certainly left Mrs Parker with a virtually blind left eye and has serious interfered with her confidence and ability to cope." After the appeal had been lodged the appellant submitted a brief of evidence from Mr Holmes in which he then stated: "I have considered very carefully whether or not the fall caused the bleeding which would have led to the scarring. My conclusion is that it is more likely to have been caused from the fall than by ageing. I accept that it is possible that the loss of vision could be caused by the onset of old age but the time relationship between the fall and the loss of vision seems far more than coincidental. I accept that it could be that, however having carefully considered the evidence, on the balance believe the sub- retinal haemorrhage was caused by the fall." He then went on to say: "Age related macular degeneration is a very common form of visual loss in the elderly and I would not be surprised to find such changes in a patient of 88. 3 It seems to me the coincidence of the onset of the fall and the loss of sight is more than a little unusual and is more likely to be the cause of the loss of sight than age related degeneration." As the Court agreed to the production of Mr Holmes' affidavit, Mr Corkill was granted leave to adduce a further report from Mr Mair. Mr Mair had had the benefit of reading Mr Holmes' affidavit and he then gave as his opinion: "I believe that the association between the fall and the macula haemorrhage in the patient's left eye remains speculative. There is proven documented age related change in both eyes and the behaviour of the macula lesion in the left eye (sub-retinal fluid and haemorrhage) followed by the appearance of the scar described by Mr Holmes (a large disciform scar) is typical of the natural history of a sub-retinal neovascular membrane, which is an aging (sic) change. Even if the fall precipitated the acute event of the haemorrhage (which is speculative) it is unlikely to have done so without the pre-existing pathology of a subretinal neovascular membrane at the left muscle." Mr Fletcher submitted that I should accept the assessment made by Mr Holmes and Dr Bell while Mr Corkill submitted that Mr Holmes' opinion was speculative and therefore did not meet the required standard of proof. I consider that having regard to Dr Bell's concern within a week of the accident that the appellant's sight in her left eye was beginning to fail and the fact that it has now completely failed gives credence to Mr Holmes' opinion that it is more than likely that it was the fall rather than the ageing process which has resulted in the loss of vision. I agree with his view that it is more than a coincidence that the fall and loss of eye sight are so closely associated. While Dr Mair considers that association to be "speculative", I consider that because of the association in time, the appellant has satisfied the onus on her that on the balance of probabilities it was the fall which gave rise to the loss of sight and not the ageing process. The appeal is therefore allowed. The appellant is entitled to costs of $850 together with the cost of Mr Holmes' report and reasonable travel expenses for Mr Fletcher to attend the appeal hearing. If there is any difficulty in assessing the amounts involved, counsel can refer the issue to me. DATED at WELLINGTON this 16th day of November 1999 A W Middleton District Court Judge dca 142-99.doc (nr)