McIntosh v Accident Compensation Corporation

IN THE DISTRICT COURT AT CHRISTCHURCH AI 301/02 UNDER the Accident Insurance Act 1998 ("the Act") IN THE MATTER OF an appeal pursuant to Section 152 of the Act BETWEEN JUNE-ANNE MCINTOSH Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Heard at Christchurch 12 February 2003 Appearances: The Appellant on her own behalf Mr C J Hlavac, counsel for Respondent Date of this decision: 7 May 2003 INTERIM DECISION OF JUDGE P F BARBER The Issue [1] The issue in this appeal is whether the respondent was correct on 30 January 2002 to decline to fund extra physiotherapy payments for the appellant. Background [2] As at January 2002, the appellant was experiencing pain in her left neck and shoulder region and that pain was derived from shifting a heavy beer keg in 1986. Since then, she has had a number of falls on her right shoulder which have contributed to her ongoing difficulties. She was also experiencing ankle problems following twisting her ankle in 1993. On 26 July 2001 she injured her right ankle during a fall down some steps. [3] She also experiences lower back pain sustained on 19 April 2001 when she was lifting a garage door which jammed halfway up. With regard to the latter injury, she received a number of physiotherapy treatments from April 2001 onwards. [4] In October 2001 the respondent referred her to Dr C Strack, a Specialist Occupational Physician, for a full assessment and opinion regarding her pain from those injuries. Dr Strack responded with a detailed 15-page report dated 26 November 2001. Following a full summary of the appellant’s injury history and ongoing symptoms, Dr Strack detailed (at pp 10 & 11 of his report) diagnoses of: a) Moderate cervical spondylosis at the C5/6 and C6/7 levels; b) Dysplastic hips with minimal osteoarthritis on the right; c) Pain and swelling about both ankles; d) Lower back pain with radiation of pain into the right lower limb; e) Fibromyalgia, evidenced by pain above and below the waist, as well as on both sides of the body and affecting the axial skeleton, indicating “a degree of pain dysfunction that is likely to be contributing to the overall clinical picture”. [5] Dr Strack then went on to respond to the specific issues identified by the respondent and advised at page 14: “You ask whether I believe that continued physiotherapy and/or manipulation treatments would be of benefit to Ms McIntosh’s overall status in the long term – I believe that physiotherapy and/or manipulation is only likely to be of assistance in the relatively short term in relation to specific injuries such as perhaps her ankle injuries. I believe in the long-term the most effective management is for active measures on Ms McIntosh’s behalf rather than passive measures undertaken by a physiotherapist or other health provider. I suspect that her fibromyalgia syndrome is significantly affecting her overall symptom complex and I believe that therapeutic efforts to manage this more appropriately are more likely to be of benefit than passive manipulation or physiotherapy, which I do not believe is likely to have any significant long-term effect. You ask whether I believe that a strengthening programme, in association with pain counselling and vocational rehabilitation may be appropriate for Ms McIntosh – I believe I have previously discussed this in earlier paragraphs. In essence, I believe the answer to this is yes, as long as the specific medical and other health problems previously discussed, are taken into consideration in any such a programme.” 2 [6] In January 2002 the appellant suffered an exacerbation of her back pain of 19/4/01 and on 24 January 2002 Ms Roberts (the appellant’s physiotherapist) completed an ACC32 form requesting approval of payment for an additional 10 physiotherapy treatments for the appellant’s lower back strain (being that sustained on 19 April 2001), and that request was supported by the appellant’s G.P. [7] On 30 January 2002 the respondent wrote to the appellant advising that, having considered all available information, it was unable to approve further physiotherapy treatment. The letter advised that: “This is because ACC is unable to fund ongoing long-term maintenance treatment for an old injury. Dr Strack has also indicated in his report dated 26 November 2001 that “I believe that in the long term the most effective management is for active measures on Ms McIntosh’s behalf rather than passive measures undertaken by a Physiotherapist or other health provider.” Given this information I have therefore declined the request to fund extra treatments.” [8] The parties accept that the January 2002 incident is not a separate injury but an exacerbation of the injury of 19 April 2001; so the appellant has not sought separate cover with regard to the January 2002 incident. [9] There have been a number of communications between the parties from February 2002 to date. At one stage the appellant advised her case manager that all she wanted was acupuncture, but the case manager considered that, although that might give temporary relief, it would not resolve the appellant’s ongoing problems, and the respondent must consider long-term management strategies. On 26 February 2002 the respondent advised the appellant’s physiotherapist by letter as follows: “1. June has been advised that ACC cannot support ongoing maintenance sessions for injuries that are no longer acute. The date of June’s accident was 19.04.01. Generally, it would be considered that an injury is no longer acute after 3 months post accident. 2. In order to assist June to better manage her ongoing chronic pain problem and her acute “flare ups” she has been offered the opportunity to participate in a comprehensive pain management programme. This programme will involve a multidisciplinary team who will assess and treat June holistically. June will not be required to travel any great distance, as the programme will be based locally. Unfortunately June has shown no interest in attending the pain management programme nor has she been willing to negotiate a suitable rehabilitation programme. 3 3. I have not discouraged June from continuing with therapies that she finds beneficial but I have advised that ACC is unable to provide funding.” [10] The appellant provided supporting medical information from Dr Burry (a report of 9 May 2000), the said physiotherapist Ms Roberts (letter 18 February 2002), and her G.P. Dr Spring (letter dated 15 May 2002). [11] This matter went to Review in the usual way but, by decision of 20 June 2002, the Review Officer declined the appellant’s application and upheld the respondent’s decision. The Review Officer’s reasoning and conclusion is as follows: “Following the accident in April 2001 it would appear from the original ACC32 that permission was given for Mrs McIntosh to have twelve physiotherapy treatments which Mrs McIntosh explained involved a mixture of physiotherapy and acupuncture which she had two times a week for about five weeks to clear up the acute episode. Dr Strack then reported to ACC and specifically indicated that he considered the long-term and most effective management was for active measures on Mrs McIntosh’s behalf rather than passive measures undertaken by a physiotherapist or other health provider. Mrs McIntosh then suffered an exacerbation of her back injury in January 2002 (which was not the subject of a separate claim) and ACC declined the request based on Mr Strack’s report. While I appreciate the support given for Mrs McIntosh’s review from Mr Tranter, her GP Dr Spring, and Ms Roberts the physiotherapist, I consider ACC was entitled to rely on the report of Dr Strack, a specialist in occupational medicine. In particular, by reference to Clause 2 of Schedule 1 of the Act, ACC must have regard to whether or not the treatment was necessary and appropriate and of the quality required for the purpose of enabling Mrs McIntosh to lead as normal a life as possible. I consider Dr Strack’s report does not support this requirement. Whilst it is acknowledged that if Mrs McIntosh was to have new injuries culminating in acceptable claims by ACC there may not be the same difficulty in getting initial physiotherapy treatment for those specific injuries this situation is somewhat different. Mrs McIntosh had already received ten treatments immediately after the injury in April 2001 then requested a further ten treatments in January 2002 when she suffered an exacerbation of that injury (with no additional claim lodged). It follows that I consider ACC was entitled to act on the advice of Dr Strack and decline Mrs McIntosh’s request for additional physiotherapy treatments. It follows that the application for review is dismissed. There is no order for costs.” 4 The Relevant Statutory Provisions [12] This matter falls to be determined pursuant to Clauses 1 to 4 of Schedule 1 of the Accident Insurance Act 1998 and, for present purposes, I now set out Clause 2 of that schedule: “2. Insurer must pay--- (1) The insurer is liable to pay the cost of the insured’s treatment if the treatment is for the purpose of enabling the insured to lead as normal a life as possible, having regard to the consequences of his or her injury, and the treatment--- (a) Is necessary and appropriate, and of the quality required, for that purpose; and (b) Has been, or will be, performed only on the number of occasions necessary for that purpose; and (c) Has been, or will be, given at a time appropriate for that purpose; and (d) Is of a type normally provided by a treatment provider; and (e) Is provided by a treatment provider of a type that normally provides that treatment. (2) In deciding whether subclause (1) applies to the insured’s treatment, the insurer must take into account--- (a) the nature and severity of the injury; and (b) The generally accepted means of treatment for such an injury in New Zealand; and (c) The other options available in New Zealand for the treatment of such an injury; and (d) The cost in New Zealand of the generally accepted means of treatment and of the other options, compared with the benefit that the insured is likely to receive from the treatment.” A Summary of the Submissions for the Account [13] It is argued for the appellant that insufficient notice has been taken of Dr Strack’s statement, at page 11 of his report, “I have not specifically investigated Ms McIntosh’s lower back pain. Should this become a more noticeable option, then I believe an orthopaedic opinion and further investigations may need to be considered”. 5 [14] Also, the appellant refers to her physiotherapist, Ms S Roberts, on 24 January 2002 formally requesting approval of payment for additional physiotherapy treatments for the appellant’s lower back strain. Indeed, counsel for the respondent referred to an 18 February 2002 letter written by Ms Roberts to the respondent stating: “She has had significant pain in the past, (detailed history is in the report from Dr Christopher Strack dated 26 November 2001) but has acute episodes, usually caused by a trauma of some kind, eg: a fall, lifting injury etc. June can usually self manage her low back pain with walking, exercise and occasional pain relief understanding that this is necessary for the best possible continuation of function for the future. However, when her pain level is exacerbated by these traumatic episodes the self management techniques appear not to be effective in offering her adequate pain relief. This is complicated by the fact that she is unable to take anti-inflammatory medication due to a sensitive stomach and the intolerance of her blood platelets. It is at these times that she presents to physiotherapy, gaining excellent relief from acupuncture. A course of treatment would usually be 6 to 10 visits, but then she is discharged to continue herself management programme. Because June has a complex pattern of musculo-skeletal pain involving several areas of her body, she states that her back is crucial to maintaining her general mobility and function, allowing her to cope with her other aches and pains… . ” [15] The appellant particularly wished that I note Ms Roberts’ final additional sentence to that letter reading: “It is acknowledged that ACC do not fund for maintenance programmes but June is requesting help to overcome an acute episode, which settles with therapy, and allows her to carry on.” [16] As it happens, the appellant has had the treatment she wished the respondent to provide by paying for it herself. As she saves money, she obtains further physiotherapy treatments. [17] The appellant submits that the respondent must take her as it finds her. Reasons for Decision [18] The injury in issue is the back pain sustained on 19/4/01 which was exacerbated in January 2002. 6 [19] Mr Hlavac referred to the appellant’s primary current problems and symptoms as arising out of a generalised pain syndrome or fibromyalgia. That is Dr Strack’s view but may be oversimplifying matters. In some ways, the comprehensive report of Dr Strack is a little focused on injuries which are not the specific issue. I agree that it is necessary to consider management of the appellant’s pain in the long term; and medical advice has been obtained about that, particularly from Dr Strack. [20] Mr Hlavac submits that the treatment sought by the appellant, namely, physiotherapy and acupuncture, is designed to deal with acute injury effects and is not appropriate for the long-term management of pain of the kind experienced by the appellant. I have reservations about the latter point. [21] Mr Hlavac had earlier indicated, in effect, that the appellant will continue to have ongoing pain problems arising out of her general condition. That seems to be so. Dr Strack also emphasised that physiotherapy and acupuncture treatment is only likely to be of assistance in the relatively short term in relation to the specific injuries such as the appellant’s ankle injuries. I wonder about that because it is clear from the evidence that the physiotherapy, in particular, and acupuncture seems to significantly relieve the appellant’s pain for a useful period at least. [22] Mr Hlavac reminded the Court that the type of issues which arise for determination must be considered on available medical evidence. Of course, that is correct, although the normal judicial process must be applied to the evidence. [23] Mr Hlavac submitted that, in considering the primary matters relevant to whether or not the respondent corporation is liable to provide any particular treatment, namely, those matters set out in Clause 2 (1) of Schedule 1 to the Act, the medical evidence which the Court should rely on is Dr Strack’s report. In general, I agree. He submitted that does not support the requirement in Clause 2 (1)(a) that the treatment sought is necessary and appropriate, and of the quality required for the purpose of enabling the appellant to lead as normal a life as possible. 7 [24] Dr Strack makes it clear in his report that he does not consider that physiotherapy is an appropriate treatment for the generalised pain symptoms from which the appellant suffers. I can see, in theory, that would be a correct medical statement, but I wonder whether a good sequence of physiotherapy could significantly improve the long-term outlook for the appellant. [25] Essentially, the respondent corporation seems to be taking the attitude that it wants to look at the bigger picture of the appellant’s health, rather than the appellant’s short-term acute pain problems. I would have thought that most claimants would be just as concerned, if not more so, about their short-term acute pain problems than the indefinite outlook. [26] Mr Hlavac also submits that, in considering the additional matters which an insurer must take into account as set out in Clause 2(2) of the said Schedule 1 to the Act, the respondent has taken into account the nature and severity of the appellant’s injury (refer clause 2(2)(a)) and that it is clear from Dr Strack’s report that the acute effects of the appellant’s back injury of April 2001 have now subsided to the point that her ongoing problems relate to her more generalised pain syndrome. I feel that is, perhaps, overstating Dr Strack’s view. He seemed to accept her back pain as “a significant problem” which is made worse with “activities’ and sitting in and/or getting out of a car; and it is “now associated with right sided sciatica as well.” This can extend down the back of her right thigh and calf towards her ankle lasting “a day or so” several times a month perhaps. Mr Hlavac puts it that the recommended treatment is not physiotherapy, but a long-term pain management treatment programme. [27] With reference to clause 2(2)(b) of the schedule, Mr Hlavac again puts it that the generally accepted means of treatment for such a pain syndrome is not physiotherapy but, rather, a long-term pain management treatment programme. [28] I must say that I find the concept of a “long-term pain management treatment programme” rather vague. However, Mr Hlavac puts it that such a programme is available to the appellant and that the respondent has offered to work with the appellant in developing such a programme, which the respondent will fund. 8 [29] The overall submission for the respondent is that, in all the circumstances, the medical evidence does not support the appellant’s contention that the treatment now sought by the appellant is of a type that the respondent should be required to provide. However, for all that has been said, it seems to me that the appellant meets the criteria of clause 2 of the said Schedule to the Act. I realise that the onus of proof is on the appellant to the standard of the balance of probabilities. [30] I consider that the respondent corporation should fund more physiotherapy treatment for the appellant who only seeks it for acute episodes and not otherwise. I understood her to say to me that the respondent has only paid for her to receive 10 physiotherapy treatments in fairly recent times because she has confined obtaining them to what she calls ‘acute episodes of pain’. Since the said 30/1/02 decision of the respondent declining such funding, she has paid for such treatment herself. [31] It seems to me that unless I am given some idea of the proposed pain management treatment programme, I cannot formulate a final order in this case. Accordingly, I direct that the parties see me In Chambers (perhaps, this could be handled by a telephone conference) on the best practical way to resolve this appeal in terms of the views I have expressed. Judge P F Barber District Court Judge Wellington 9