McLaughlin v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 21 /2000 Appeal No. DCA 502/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 ("the Act") AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JOSEPH HOHEPA McLAUGHLIN Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent HEARD at WELLINGTON on 26 November 1999 DATE OF DECISION: 11 February 2000 APPEARANCES Appellant on his own behalf Mr C Richards, counsel for respondent RESERVED JUDGMENT OF JUDGE P F BARBER The Issue In January 1998, Mr C G Mellow, Plastic and Reconstructive Surgeon, applied to the respondent, on behalf of the appellant, for approval of private hospital treatment costs so that Mr Mellow could perform surgery to correct a deviation of the appellant's nasal septum. In a decision of 10 June 1998 the respondent declined that application. The matter proceeded to a Review Hearing and in a decision of 29 October 1998, the Review Officer (Mr D B Pullen of Wanganui) upheld the respondent's decision. The issue before me is whether the said application (for the appellant) has been correctly declined. The basis for the respondent (on 10 June 1998) declining 2 approval of private hospital costs was that the proposed surgery would not restore the appellant to his principal economic activity. Factual Background The appellant has cover from the respondent for serious facial injuries he suffered in an assault of 20 November 1991. On 26 November 1991 he had reconstructive surgery to his jaw and cheekbone. As it happens, on 29 December 1991 the appellant was involved in a minor vehicle accident and suffered contusions. In September 1996 the appellant was imprisoned for a period of nine years after being convicted of rape and he is still in prison. The Medical Evidence A large number of medical documents have been adduced to me including the following: D Surgical report dated 3 August 1992 by Dr S A Evans, Maxillofacial and Oral Surgeon. Report dated 16 March 1993 by Dr G Newburn, Psychiatrist. Report dated 29 November 1993 by Dr K Gross, Specialist Eye Surgeon. Report dated 3 December 1993 by Dr S A Evans. Report dated 9 February 1994 by Dr K Gross. Report dated 1 November 1994 by Dr S Donn, Ear Nose and Throat Surgeon. Report dated 14 November 1997 by Dr D Tandon, Clinical Fellow at Green Lane. Application for private hospital treatment costs dated 16 January 1998. Report from Dr Mellow dated 12 April 1999. Further reports were tendered to me by the appellant. Those included a report dated 18 June 1996 to the Rotorua Police by Dr P L Parbhu Bhai. None of the medical reports prior to Dr Donn's report, dated 1 November 1994, make any mention of injuries to the appellant's nose. The injuries for which the appellant received treatment in November 1991 were to his jaw and cheek bone. In his report of 16 March 1993, Dr Newburn set out an extensive list of symptoms suffered by the appellant following the assault (November 1991) and subsequent motor vehicle accident (December 1991) respectively. No problems with the appellant's nose are listed among these symptoms. 3 Or Evans' report of 3 December 1993 was prepared for the purpose of describing any ongoing problems experienced by the appellant. Nowhere in that report does Or Evans mention any problem with the appellant's nose. In his report dated 1 November 1994, Dr Donn first mentions that the appellant had suffered a broken nose at some point in the past. However, he seemed unable to attribute the broken nose to the accident in respect of which the appellant has cover. Or Donn makes no mention of the appellant suffering nosebleeds or headaches, and concludes that the appellant's nasal septum is in fact in a fairly good position: "He has a deviated nose externally to the left from a previous fracture but the septum is in a fairly good position. As far as I am aware, he has no relevant pre-injury impairment, although it is difficult to say whether his fractured nose is an old or new injury. In a short supplementary report of 14 November 1994, Dr Donn is uncertain whether "this gentleman's nasal fracture is accepted as part of his injury." In his report dated 4 September 1997, Dr Tandon attributes the appellant's nose problems - "a bilateral nose blockage" - to an assault occurring in prison four months earlier. No claim for cover in respect of such an assault had been made with the respondent. Dr Tandon mentions that the appellant suffers "occasional nosebleeds" and complained of head pain. Inter alia, he states: "Examination revealed a straight dorsum of the nose and a very mild flattening of the right side of the nasal bony pyramid. There was some tenderness on the right side of his nose. His septum shows a moderate deviation to the left. His throat, ears and neck were normal. I discussed with Dr Paul Simcock who felt that an operation is unlikely to benefit this patient. I have therefore requested him to continue taking Digesic for pain which I expect to resolve in the next few weeks. Should there be any fresh problems I would be happy to review him once again." On the appellant's application for private hospital treatment costs dated 16 January 1998, Dr Mellow says: "Deviated nasal septum. Cannot breathe normally/snores." Dr Mellow does not mention any problems with nosebleeds or headaches on the application. Upon being asked to describe the effects of the appellant's deviated nasal septum, Dr Mellow says in his report dated 12 April 1999: 'As part of the injury to his facial bones he has continued to have problems with nasal blockage. I enclose a copy of the referral. I also enclosed however a letter from Greenlane Hospital ORL clinical fellow Dev Tandon, saying that MR Mclaughlin was apparently assaulted whilst in Mt Eden Prison suffering nasal and forehead injuries. ENT Surgeons felt that it was unlikely that surgery would benefit this patient. I also enclose the letter of referral from Dr Agnihotri from Mt Eden Prison referring him for treatment for cosmetic surgery to his face to improve the condition of his face. It therefore appears to be some doubt as to when the injury occurred in 1991 as a result of a motor vehicle accident or as a result of an assault in prison in October 1996. It maybe a combination of both. This man has nasal septum deviation he complaints of headaches at the back of his head and that his nose is significantly blocked. On examination he has external nasal deviation, the septum is deviated to the left significantly with obstruction of the right side. He snores he tells me. I have got no record of any problems he was having of nosebleeds in my consultation. However the ENT Surgeons of Greenlane Hospital did note that he had occasional bleeds from the right side of his nose" In that same report, Dr Mellow says that the appellant had indicated that he did not wish Dr Mellow to be involved in his case any further, and that the appellant was therefore no longer his patient. There is no evidence that the appellant has consulted another surgeon. Dr Mellow enclosed with his report, dated 12 April 1999, a copy of a letter from Dr P Fleischl, General Practitioner of Taupo, referring the appellant to Dr Mellow. In that letter, Dr Fleischl says: "Thanks for seeing this man who continues to suffer from nasal blockage since the MVA of 1991 at which time he sustained facial fractures." Dr Fleischl appears to be incorrect about the cause of the appellant's facial injuries, which resulted from the assault on 20 November 1991 rather than the motor vehicle accident on 29 December 1991. Dr Fleischl does not mention that the appellant is suffering from nosebleeds or headaches. The Law I was referred to regulation 11 of the Accident Compensation (Specialists Costs) Regulations 1990 which reads: " 11. Conditions applying to payments for surgical procedures---(1) The Corporation shall not make any payment in respect of any procedure specified in Part II of the Schedule to these regulations unless-- (a) The treatment is provided- (i) In a licensed hospital; or In the case of items marked in the Schedule with an asterisk (*), in the registered specialist's room; and 5 (b) The prior approval of the Corporation to the performance of the procedure has been obtained. (2) Except as provided in subReg(3) of this regulation, the Corporation shall not give the approval referred to in subReg (1) of this regulation unless it is satisfied that it is necessary for the due restoration of the claimant to his or her principal economic activity or would enable the claimant to undertake remunerated employment that the treatment be provided. (3) The Corporation shall give the approval referred to in subReg (1) of this regulation where- (a) The procedure is specified in Part II of the Schedule to these regulations under the heading "Plastic Surgical Procedures:; and (b) The Corporation is satisfied, after obtaining such assessments as the Corporation considers necessary (which assessments shall be obtained at the expense of the Corporation), that without the completion of the procedure the claimant would not be able to participate in the normal social activities that might be expected for that claimant. (4) Nothing in this regulation shall apply in respect of- (a) Any procedure in Part II of the Schedule to these regulations that is marked with a cross (+); or (b) Any procedure that is discovered to be necessary to perform, and is performed, during the course of any approved treatment." The Submissions of the Appellant The appellant commenced his submissions to me by stating that he did not have "the facts" at the Review Hearing but he now produced a short letter from Dr Fleischl, date 4 November 1997, referring the appellant to Dr Mellow and stating (as mentioned above) "Thanks for seeing this man who continues to suffer pain from nasal blockage since the MVA of 1991 at which time he sustained facial fractures." Accompanying documentation refers to the appellant having resulting in sinusitis from that incident. The appellant also handed me a copy of a report of 16 March 1993 from Dr Newburn, as a Consultant Psychiatrist, to ACC at Rotorua and to Dr A Singh of Murupara, about the appellant's then medical condition and its effect on his life. The appellant then said that he was assaulted in 1996 while on remand and that he considers "the prison" should pay for the necessary surgery rather than the respondent, but that each of them (the prison and the respondent) refer him to the other. He maintained that he is likely to soon be released from prison. In his final reply, the appellant referred to the many allegations made against him, on behalf of the respondent, as being false. He instanced that he only worked as a Bushman for 11/2 weeks at four hours a day, as part of a rehabilitation course trial in 1996. He said he was then dismissed because he could not perform the job, and that he had failed at three other jobs at about that time. He seemed to be saying that this led him to work under a false name. He submitted that the remedial surgery to his nose, which he now seeks, is "a necessity of life" and that the respondent is 6 obliged to pay for it, and that he should not be continually passed around on the matter between prisons and the respondent. Reasons for Decision Since I found Mr Richards' typewritten submissions of great help, I incorporate them into my reasoning below. Obtaining a reliable account of the appellant's symptoms seems to have proved difficult for the medical practitioners who have examined him. In his report dated 29 November 1993 Dr Gross says: "When seen 15.11.93 Mr Mclaughlin was found to be very difficult to examine. It was almost impossible to obtain a clear history or clear description of his visual problems." In his report dated 9 February 1994 Dr Gross says: "As indicated, examination and history taking was rendered almost impossible by this patient's behaviour.' In his report dated 1 November 1994 Dr Donn says: 'On examination today the history is not as forthcoming as it might be." Where the appellant does give a lucid account of events and his symptoms, I consider that his account is to be accepted with caution. There are many events in the appellant's history (as put before me) which cast considerable doubt on his credibility and, generally, his evidence does not fit with the evidence overall. I did not assess him as a credible person. The respondent received information in February 1995 that the appellant was working as a forestry worker under an assumed name while allegedly incapacitated. The respondent commenced an investigation of the allegations by using a firm of private investigators. The information gathered by the private investigators is set out in a report dated 8 March 1995. That report concludes that the appellant had been working as a forestry worker under the assumed name "Joe Hillman" at a time when he was accepting weekly compensation as incapacitated from the assault accident of 20 November 1991. As a result of the investigation, charges of fraud were laid against the appellant. However, the charges were not prosecuted further because the appellant was sentenced to nine years imprisonment on an unrelated charge of rape. In fact, the appellant has refused to acknowledge responsibility for the rape. On 5 December 1997 he commenced a private prosecution against his victim, alleging that she had falsely accused him. Given the appellant's pattern of conduct, I accept Mr Richards' submissions that this Court should regard his account of events and of his symptoms with caution, and give careful weight to the medical evidence on file. That medical evidence does not 7 indicate that the appellant's nose fracture is a result of the accident for which he has cover. The medical reports prepared shortly after his accident were full and thorough, yet did not mention any fracture to the appellant's nose. It seems more likely that the nose fracture predated or postdated this accident. The appellant has not applied for cover with respect to any previous or subsequent nose injury. Even if it is accepted that the appellant's nose condition is attributable to the accident for which he has cover, the medical evidence and the facts of the case indicate that his condition is not such that surgery is required to restore him to his principal economic activity, enable him undertake remunerated employment, or permit him to participate in normal social activities - in terms of criteria of the said reg 11. The appellant's principal economic activity was working as a Bushman. The Private Investigator's report indicates that the appellant worked successfully as a Bushman under a false name despite a supposed incapacity. Several statements from the appellant's employers during that time are included in the Private Investigator's report. None of these statements indicate that the appellant had any difficulty carrying out his tasks as a Bushman as a result of a nose problem nor for any other eason. No mention is made by these former employers of any nosebleeds or headaches being suffered by the appellant. A further submission for the respondent is that the appellant is now serving a long sentence of imprisonment and has no immediate prospect of being able to return to work as a Bushman so that there is no immediate need for surgery to restore him to economic activity. It is not necessary for me to address this point due to my various findings herein. However, I would be reluctant to accede to the argument that being in custody would necessarily mean that a claimant cannot comply with the criterion of the said reg 11(2) that the respondent be satisfied that the treatment "is necessary for the due restoration of the claimant to his or her principal economic activity or would enable the claimant to undertaken remunerated employment", nor with the criterion in the said reg 11(3) "that without the completion of the procedure the claimant would not be able to participate in the normal social activities that might be expected for that claimant." However, I agree with the submission of Mr Richards that, in any case, the medical evidence does not indicate a causal link between any headaches and nosebleeds, which the appellant may be suffering, and his nose condition. Also, the medical evidence does not indicate that the appellant's nose condition is such that it would prevent him from working in any occupation or engaging in any social activity. There are very few references in the medical evidence to either nosebleeds or headaches; but where they are mentioned, the medical practitioners give very little emphasis to them and do not causally link them to the appellant's deviated nasal septum. It seems that the appellant's principal problems associated with his deviated nasal septum are blockage and snoring. There is inadequate evidence before me to show that the appellant's nasal problems were caused by an accident which he has cover from the respondent. The relevant medical reports at the time are detailed but they refer entirely to damage to his cheekbone and jaw. There is no reference to his nose until Dr Donn's report of 1 November 1994. It has not proved possible to ascertain, on the balance of probability, the true facts regarding the damage to the appellant's nose. Accordingly, 8 there is no proved sufficient connection between that damage and any liability of the respondent to cover that injury. I find that, on the balance of probability, any remedial treatment needed to the appellant's nose is not in respect of an injury flowing from the 1991 assault, which is the covered incident before me. My assessment of the situation, overall, is that I can only regard the appellant's testimony with much caution and quite some scepticism in terms of the truth of the situation. Certainly, the evidence is that, at material times, the appellant was able to return to the strenuous job of a Bushman, and what he now says about the injury to his nose is not borne out by a study of the medical reports between 1991 and 1994. The evidential burden is reposed on the appellant to establish on the balance of probabilities that his nose condition is attributable to the 20 November 1991 accident (in respect of which he has cover), and that his condition is such that surgery is required to restore him to his principal economic activity, enable him to undertaken remunerated employment, or permit him to participate in normal social activities. find that the appellant has not established any of these elements to the required standard. For the above reasons, this appeal is hereby dismissed. Judge P F Barber District Court Judge WELLINGTON dca502-98.doc (nr)