Comerford-Parker v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. qq /2008 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN JILLIAN COMERFORD-PARKER (Al 74/06) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 8 April 2008 APPEARANCES Mr Jonathon Miller, Counsel for Appellant. Mr P Radich and Ms B Charmley, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 23 March 2003, whereby it declined to grant cover to the appellant for the mental injury of Post- Traumatic Stress Disorder (PTSD) on the grounds that the mental injury claimed was not an outcome of the physical injuries suffered by the appellant, for which she had been granted cover. [2] The issue in this appeal requires to be considered by reference to the relevant provisions of the Accident Rehabilitation and Compensation Insurance Act 1992, as it was during the currency of that Act that the appellant suffered the physical injuries which she contends brought about as an outcome the mental injury of PTSD. This legal position arises by virtue of Section 36(2) of the Injury Prevention, Rehabilitation 74.06 (pg) 2 and Compensation Act 2001, which was the Act in force when the appellant lodged her claim for cover for that mental injury, and which by Section 36(2) it is stated: te on which a person suffers mental injury because of physical injury suffered by the person is the date on which the physical injuries are suffered.' [3] The relevant statutory provision which is therefore applicable to the appellant's claim for cover is Section 4 of the 1992 Act where, as part of the definition of "personal injury" it states: For the purposes of this Act personal injury means the death of, or physical injuries to, a person and any mental injury suffered by that person which is an outcome of those physical injuries to that person." [4] The issue in this appeal therefore is whether the appellant's circumstances can bring her within that definition of personal injury in respect of her diagnosed mental injury of PTSD. [5] The background facts relevant to this issue are not in dispute and may be stated as follows: The appellant was the proprietor of a small shop trading as Gypsy Crafts and situated on State Highway 1 near Ruakaka. The appellant's living premises were adjacent to the shop. . On 28 May 1998 at about 4.00 a.m., the appellant awoke to the sound of the burglar alarm in the shop going off. She elected to go and see what the cause was and from the outside she went to the shop front and through the glass saw a young male inside. When this person saw her he pointed a pistol at her. With that she panicked, turned and ran, and in so doing she slipped and struck her knees on the cover of a septic tank. Although injured she made it back inside and rang the Police. When the Police arrived they located the intruder still on the premises hiding. A replica pistol was also found Initially a claim for cover for the left knee only was lodged, the injury being described as a soft tissue injury. Subsequently in November 1998 a claim was made for injury to the right knee, again described as a soft tissue injury. The appellant has continued to experience persistent knee pain, more in the left, with the left knee sometimes becoming swollen. . X-rays noted no bony abnormality. There is now evidence of arthritis. 3 . In March 2000, the appellant's then GP referred her to a psychiatrist because of her perceived depression. Dr Perkins, the psychiatrist to whom she was referred, reported that the appellant had been subject to multiple stressors over a number of years. The burglary incident was not mentioned Between May 2000 and December 2004 the appellant attended regular sessions with a counsellor, Margaret Lewis, and in a report to her GP in August 2002, Ms Lewis mentioned that one of the several traumatic situations the appellant had experienced was the occasion of the burglary. In January 2003, the appellant's then GP, Dr Baddock, completed a report in which she noted, inter alia, that the appellant was suffering from PTSD, complicated by anxiety and depression since the burglary. On 6 March 2003, the appellant lodged a claim with ACC through Dr Baddock for cover for her PTSD, said to have arisen out of the May 1998 incident. By decision dated 28 March 2003, which is the decision now under appeal, the respondent declined the appellant's claim stating that there was inconclusive evidence to support a claim that the nature of her injury had directly contributed to her PTSD. The appellant sought a review of that decision and after a false start a review hearing took place in January 2006, at which the appellant was represented by counsel. In her decision dated 13 February 2006, the Reviewer, Ms Nyleen Ford, gave as her decision as follows: 'The mental injury must arise from the physical injury. I find that the mental injury has arisen from the shock of being confronted by the burglar. The mental injury had therefore arisen before she sustained the physical injury. I find that the mental injury was not caused by the injury to the claimant's knees.' 6] The Court is not aware of what medical information ACC may have had when it made its decision to decline, but it is the case that at that time there was not a great deal of medical information in existence save some reports from specialists who had treated her for depression and, as noted, those reports did not refer to the burglary incident at all. 4 [7] The first occasion that it was referred to, and which would have been provided to the respondent, would be the letter of 9 January 2003 from Dr Baddock, who noted as follows: "This 57 year old woman has only very recently come under my care. I have been requested to provide medical information regarding the problems which have been associated with injuries she has suffered, particularly the robbery on 28 May 1998. During this robbery she suffered a direct injury to her knees when she fell heavily onto hard ground. This injury was lodged with ACC as a left knee injury - Claim No: W 266834 (also see comments under right knee injury). Since the robbery she has suffered from post-traumatic stress disorder complicated by anxiety and depression which has significantly affected her abilities to function particularly in the workplace. She has required assessment by a psychiatrist and has been having counselling for the past 2 years. At different times she has trialled antidepressants but is currently trying to manage without medication." Dr Baddock also set out a number of other physical injuries which the appellant had suffered both before and after this event and which had been the subject of claims. [8] The first specialist investigation of what might be said to be the medico-legal issue in this appeal was carried out by Dr G Mccormick, Specialist Psychiatrist, who was instructed by the respondent for the purpose in August 2005. [9] Dr Mccormick interviewed the appellant and he had a range of file data and correspondence, including correspondence from Ms Margaret Lewis, the appellant's therapist. Dr Mccormick reported to the respondent on 10 October 2005 and stated, inter alia, as follows; 'There is evidence to suggest that Ms Comerford-Parker is suffering from Post Traumatic Stress Disorder (PTSD) as a result of her 1998 trauma. By "trauma" I refer to Ms Comerford-Parker's confrontation with her assailant and not to any physical injuries which she sustained, even if these injuries serves as reminders and/or triggers for her PTSD. In this regard - Ms Comerford-Parker suffered an event which represented a threat of serious injury or death; she continues to describe re-experiencing phenomena related to this trauma which include persistent and intrusive memories of the event, nightmares around the event and flashbacks of the event; she attempts to avoid stimuli which invoke memories of the event, both by distancing herself from any such triggers and by using psychological techniques to keep such thoughts and memories at bay; Ms Comerford-Parker continues to experience chronic signs of increased al with increased levels of anxiety, chronic difficulties with insomnia, an intolerance of noise, an exaggerated startle response and a pattern of hypervigilence. 5 Ms Comerford-Parker's PTSD is in my opinion a mental condition directly linked to her 1998 accident. The condition has been caused by mental and not physical injury." Dr Mccormick had been asked by the respondent to advise whether in his opinion her PTSD had been caused by the personal injury suffered by her on 28 May 1998. He replied: "I consider that Ms Comerford-Parker does suffer from Post Traumatic Stress Disorder (PTSD) which I would currently rate as being of moderate severity, causing on-going problems in Ms Comerford-Parker's life. As suggested above, ! do not consider that Ms Comerford-Parker's PTSD is the sole cause of her current difficulties, these being the product of her current life situation, her overall physical health, a range of past experiences and traumas and her personality style." [10] In September 2006, the appellant was seen by Dr Gil Newburn, Neuropsychiatrist, on instructions from Mr Miller. Dr Newburn was provided with a substantial number of documents, including the report of Dr Mccormick. In his report of 15 November 2006, Dr Newburn carefully traversed the appellant's history, both medical and personal, and he too confirmed the diagnosis of PTSD as well as a major depressive episode. Dr Newburn then discussed the matter as follows: "Ms Comerford-Parker presents with well established post traumatic stress disorder, described clearly by Dr Mccormick, psychiatrist, and confirmed by the writer. Additionally, she continues to show features of a major depressive episode. It is of concern that she is not currently receiving adequate management of these disorders It is equally clear that post traumatic stress disorder arose out of events described, relating to a robbery of a shop in front of her house in Ruakaka in 1998. It is also clear that at the time of this event, she sustained an injury to her knees. She remains disabled by this injury, with others more expert than the writer in the assessment and management of rheumatological conditions noting a well defined effusion at least in her left knee, and Ms Comerford-Parker describing ongoing pain and disability arising from this. The issue arises as to whether post traumatic stress disorder arises from the events in which the injury occurred, rather than from the injury itself. It is clear that the symptoms in her knees continue to act as reminders and reinforcers of the events that occurred on the morning of 28 May 1998. That this is addressing a memory process means that this will act not only at the level of a cognitive or psychological function, but must also act at a physiologica Thus, there is a constant and recurrent physiological process arising from the robbery that continues to influence her mental function." [11] Dr Newburn's report was referred to Dr Mccormick for comment and he was asked to address the following questions: (i) Is Ms Comerford-Parker's PTSD caused by the physical injury to her knees suffered in May 1998? 6 (i) Is the shock or trauma of the robbery inextricably entwined with the physical injury sustained to her knees in terms such that it is artificial to separate the two, in terms of the development of her PTSD? Dr Mccormick responded as follows: "My opinion differs from Dr Newbum's in the following regard. I consider that the "trauma" which lead to Ms Comerford-Parker's PTSD was her confrontation with her assailant. DSM 4 criteria for PTSD include a prerequisite that a person suffered a trauma which was potentially life threatening. In Ms Comerford- Parker's case this was the confrontation by her assailant. Certainly, Ms Comerford- Parker subsequently injured her knees but knee injury, even with ongoing effusions, is not a potentially life threatening circumstance. If Ms Comerford-Parker had not hurt her knees on the night of her confrontation with the burglar, I suggest she still would have developed PTSD. Dr Newbum is careful to make the point that the knee injuries serve as current physical reminders of her trauma - that is to say that her knee injuries may serve as "triggers" for some of the symptoms seen in Ms Comerford-Parker's PTSD." Dr Mccormick then specifically answered the two questions by stating "No" to the first question and his answer to the second was as follows: 'This is a difficult argument. If the emphasis is on the "development of the PTSD" I consider that the knee injuries are irrelevant. I concede that the knee injuries may have an important part to play in maintaining the PTSD." [12] Following receipt of Dr Mccormick's report, the respondent sought a second opinion from Dr Greg Finucane, Consultant Psychiatrist. Dr Finucane did not personally interview the appellant but was provided with all the earlier reports, which as noted, contained very specific particulars of all relevant matters pertaining to the appellant. His comments relevant to the issue in this appeal were as follows: "PTSD is by definition caused by psychological trauma rather than physical trauma. It is not clear that the knee injury is part of the same matrix of fact as the brandishing of the gun, since it occurred a short time afterwards rather than simultaneously, but one question here is whether it is the matrix of fact as such at the time of the mental inju ental injury resulting in PTSD that is relevant is relevant or the mental conflation of one set of facts with another in the mind of the victim which determines whether or not PTSD can be linked to physical trauma and pain. My current opinion is that in the present case the horror of being confronted with a gun was necessary and sufficient for the development of PTSD in a vulnerable individual and that the fall and knee injury served to maintain the salience of this for some minutes rather than being part of the actual cause of the mental state which resulted in the Post Traumatic Stress Disorder." [13] The final report is a response from Dr Newburn to the further reports of Dr Mccormick and Dr Finucane. Dr Newburn noted that he and Dr Mccormick remain in agreement regarding the diagnosis of PTSD, but he then went on to state: 7 "He does not however believe that the PTSD arises from the physical injury suffered by her knee. However, the injury to her knee occurred in an event where there was a significant threat to her sense of integrity. This was added to by having physical injury which made it more difficult for her to escape, placing her more at risk. Thus, the knee injury and the other events at the time are inextricably entwined in such a way that it is artificial to separate the two in terms of the development of her PTSD." Dr Newburn did not make any direct comment on Dr Finucane's report save for noting that he had also accepted the diagnosis of PTSD. [14] For the sake of clarity, it should be noted that in addition to what might be regarded as the medico-legal issue arising from the definition of mental injury in Section 4, Dr Newburn had also advanced, and with some force, a contention that PTSD could be regarded as a brain injury, thus being a physical injury. This was indeed a "live" issue with Counsel for the Appellant leading up to the hearing of this appeal and parts of Dr Mccormick's report and nearly all of Dr Finucane's report, were addressing that issue. At the hearing of this appeal, Mr Miller advised that he was not pursuing that alternative contention that PISD was a recognisably physical injury in its own right. [15] Mr Miller's principle submission in support of his contention that the appellant's PTSD came within the definition of personal injury in Section 4 of the Act, was that the physical injuries to the knees were suffered by the appellant whilst she was still in what he described as "the Zone of Peril", that is, she was running away from the scene in panic. [16] Mr Miller submitted that in those circumstances it would be artificial to separate the physical from the mental injuries when both were suffered during the matrix of the event. [17] Mr Miller submitted that when she fell and hurt her knees and was thereby halted in her escape, she would have had a sense of vulnerability and the traumatic shock which she had just experienced would have continued. As he put it, "she had an extended traumatic experience" (18] In furtherance of the above submissions Mr Miller relied on the principles enunciated by this Court in the decisions of Woodd (54/03) and Greenlane-Tangipo (28/03) 8 [19] Mr Radich for the Respondent, submitted that the evidence was clear that it was the traumatic event of having the pistol pointed at her that caused the appellant's PTSD and not the knee injuries which occurred subsequently. Mr Radich submitted that the knee injuries only caused the appellant to remain vulnerable but did not cause the PTSD, which was already in existence. [20] Mr Radich further submitted that the opinion given by Dr Newburn does not answer the medico-legal question which is required to be answered by Section 4. He submitted that Dr Newburn accepted that the PTSD was not caused by the knee injury, and rather it is only an ongoing reminder to the appellant of the events that occurred on that morning. [21] Mr Radich submitted that Dr Mccormick had correctly considered the matter within the correct medico-legal context and his opinion should therefore prevail, that opinion being supported by that of Dr Finucane. [22] Finally, Mr Radich submitted that the word "outcome" in Section 4 on its plain and ordinary interpretation meant that only a mental injury resulting from the physical injury could be covered. He submitted that there must be a definite link or causal connection between the mental injury arising from the physical injury to come within the scope of the Section. DECISION [23] As earlier identified, for the appellant to be successful in her claim for cover she must establish, on the balance of probabilities, that her mental injury of PTSD was an outcome of her physical injury, in this case the injuries to her knees [24] Not unnaturally, Mr Miller is relying on the opinions expressed by Dr Newburn to support his contention that the knee injuries were suffered during the time that the appellant was still in a "Zone of Peril" from a would-be assailant who had brandished a pistol. As Dr Newburn noted, the injury to the appellant's knee occurred in an event where there was a significant threat to her sense of integrity, and this was added to by having a physical injury which made it more difficult for her to escape. It was his opinion that the knee injury and the other events at the time were inextricably entwined so that it would be artificial to separate the two out in terms of the development of her PTSD. 9 (25] That, in essence, is the elaboration of Mr Miller's submission of the appellant being within a "Zone of Peril" and of the fact that it was an extended traumatic experience. [26] I do not take Dr Newburn to be contending that the appellant's PTSD was caused by her knee injury, but rather that the event of the knee injury was an event which closely followed the confrontation which was the event giving rise to the PTSD. [27] Dr Mccormick has made it clear from his opinion that the appellant's PTSD was caused by her confrontation with the pistol wielding burglar and that the knee injuries subsequently suffered, which were of themselves only soft tissue injuries, merely served as reminders or triggers for her PTSD. [28] Dr Mccormick put the matter in context when he identified that DSM 4 criteria for PTSD required as a pre-requisite that a person suffered a trauma which was potentially life-threatening. The only potentially life-threatening trauma which this appellant suffered was that of the pistol wielding burglar and that there was nothing in the subsequent knee injuries which were a contributor to, or of themselves, a life- threatening circumstance. [29] Dr Mccormick went further to state that even if the appellant had not hurt her knees on the night of this confrontation, she would still have developed PTSD anyway. Or Mccormick was quite clear in his advice that the appellant's PTSD had not been caused by the physical injuries to her knees, and that the knee injuries were irrelevant to the causing of the PTSD, but were certainly relevant in being a trigger or a reminder of that traumatic event. [30] Dr Finucane gave an opinion which was in accord with that expressed by Dr Mccormick, he too being of the opinion that the horror of being confronted with the gun was necessary and sufficient for the development of PTSD, and that the knee injuries were not part of the mental state which resulted in the PTSD. (31] Whilst I accept that Mr Miller's description of the appellant being in a "Zone of Peril" when she injured her knees, I find that the peril was that which had arisen by her confrontation with the pistol wielding burglar. The evidence is clear that it was that traumatic event which brought about her PTSD. Indeed, by its very definition and having regard to the requirements of DSM 4, there needs to be an event in which 10 genuine fear of death or serious injury arises. That factor was present during the confrontation. [32] I consider that the circumstances which were the facts in Woodd (supra) assists in explaining the differences that do apply between that case and the present one. (33] In that case the appellant was employed in a pharmacy and was about to leave the premises at the end of the working day when two men in balaclavas grabbed her; one had a gun. She was forcibly held, her hands and feet tied, and in the course of being pushed around she suffered a shoulder injury. Central to that case was the fact that the appellant was physically assaulted by the persons who created the traumatic experience and she had the genuine and present belief that further harm, such as rape, may befall her. [34] in those circumstances, the Court had little difficulty in establishing that the physical injury from the assault coupled with the trauma of the frightening events and the belief of further injury, meant that the two events were bound up. As His Honour Judge Cadenhead stated at paragraphs 34 and 35 of his decision - "[34] Put another way this type of "assault" accompanied as it was by violence and physical injury to the appellant, was a different type of "assault" than that of a mere assault unaccompanied by any physical injury to the appellant. On the facts of this case, it is artificial to sever the physical injuries from the matrix of fact making up the "assault", as indeed the physical injuries, along with the shock, were undoubtedly in combination substantial factors that consequently gave rise to the post-traumatic stress disorder. (35] I conclude, therefore, that the appellant has discharged the burden of proof upon her on the balance of probabilities of showing that on the facts of this case there was a causal relationship between the physical injuries that she suffered with the mental injury that is now its outcome." [35] A similar situation arose in the Greenland-Tangipo case (supra). This was a case where the appellant was assaulted by the throwing of an ash-tray at her from behind, the assailant being one of a group of relatives whom she was refusing entry to her home. It was while suffering from the head blow from this assault that she experienced threatening behaviour from some of this group. It was subsequently established that the onset of the mental condition of PTSD could be traced back to this event. It was identified as being the psychological trauma to which the appellant was exposed at the time of the assault and of her fear that arose from that threatening situation. 11 [36] Again, the situation is similar to Woodd and where the injury was caused or inflicted by person or persons who were in a position to put the appellant under threat of serious injury. It was part of the psychological trauma of the assault. [37] In the present case there was no assault or physical injury from the pistol wielding burglar, and the injuries which did occur were quite extraneous to the person who had by his actions created the traumatic event. [38] I do not consider it to be artificial to separate out the events of the confrontation and the subsequent physical injury to the knees. The physical injuries to the knees were not of themselves a traumatic event which could give rise to PTSD. Rather, those injuries had occurred after the event which had given rise to the PTSD, and in effect the appellant was in shock and panic at the time she injured herself endeavouring to escape from that threatening situation. [39] I agree with Mr Radich when he submits that the word "outcome" in Section 4 must mean that the mental injury has resulted from the physical injury suffered. I find there must be a definite causal link, that is a direct cause and effect connection between the mental injury and the physical injury. The physical injury must be the source of the mental injury which subsequently arises. [40] In the present case, I find that the appellant's mental injury of PTSD was not sourced or caused by the physical injury, it was not an outcome of the physical injuries suffered, and therefore does not come within the meaning of "personal injury" in Section 4 of the Act. It is therefore not an injury which can be the subject of cover. [41] For the foregoing reasons, therefore, I find that the respondent was correct to decline to grant cover to the appellant for her PTSD. This appeal is dismissed. DATED at this 2 1 day of May 2008 M J Beattie District Court Judge