Arnold v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 011/2004 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN LEONIA ARNOLD of Wellington Appellant (Appeal No. AI 594/02) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE J. CADENHEAD [Concerning application for leave to appeal] [1] This is an application for leave to appeal against a decision of Judge Beattie dated 18 July 2003. The appellant advances two questions of law as having been incorrectly decided and they are: [a] that the Judge did not consider that pain came within the definition of physical injuries in the definition of personal injury as provided in the Act. [b] that the Judge considered that the physical injury complained of in a medical misadventure case must be separate from the injury inflicted as part of the treatment. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/011- 2004.doc AE The history of the litigation [2] The issue in the appeal arose from a decision of the respondent dated 21 December 2001, whereby it declined the appellant's claim for cover for personal injury by medical misadventure, namely medical mishap. [3] On 7 March 2001 the appellant underwent a total knee joint replacement at Wellington Hospital as a consequence of severe osteoarthritis in her left knee. At the time of her surgery the appellant was aged 57 years. The appellant remained in hospital until 13 March 2001 and the hospital notes record that the appellant was complaining of numbness of her left foot and pain in her left leg down to her foot. The sensation of pins and needles in her foot and heel pain continued and in October 2001 the appellant lodged her claim for cover for medical misadventure. [4] This decision was quashed on review in a decision dated 1 August 2002. The review decision did not grant cover to the appellant, as it merely determined that the respondent's primary decision was wrong, when it held that the appellant was not entitled to cover, because she could not establish the fact of a physical injury or any causal connection between the pain in her left heel and the knee. The effect of the review decision was to determine that the appellant had established the fact of the personal injury and the causative link between that injury and the knee surgery properly performed. The issue was then to be referred back to the respondent for further investigation and decision on whether the statutory ingredients of “rarity and severity” could be met, as these elements were required, if this injury was to qualify as a medical mishap. [5] This step has not been taken, as the respondent in the meantime lodged an appeal against the review decision. The appeal was, therefore, confined to the issues of whether the appellant had suffered personal injury, and if so, whether that personal injury could be attributed to an adverse consequence of medical treatment properly given. At the appeal hearing Judge Beattie allowed the appeal and quashed the review decision in favour of the appellant and reinstated the respondent's primary decision declining cover. The reason for this being that as a first essential it was necessary for the appellant to establish a causative connection between the adverse consequence complained of and the medical treatment. 011-2004 2 [6] In deciding the appeal the Judge had available to him the orthopaedic specialist opinion provided by Messrs Peter Devane, Ross Nicholson, and a report from the Wellington Regional Pain Clinic presented on behalf of the appellant, and a report from a neurologist, Dr William Wallis. The decision of Judge Beattie [7] Judge Beattie decided that a medical misadventure claim could not be sustained here because of the separate and self-contained grounds: [a] that pain of itself was not a personal injury. [b] that the natural consequences of the surgery, that is, the surgical incision an immediate postoperative pain and swelling was not an adverse consequence of the knee replacement surgery "in the absence of evidence that such a circumstance would not be expected as a natural consequence of knee replacement surgery". So even if there was a causal link between those natural consequences and the ongoing pain, a medical misadventure was not established. Further, cover was not sought for the immediate postoperative pain and swelling. [c] as a matter of fact, on the medical evidence and the circumstances of the case there was no causal connection established between the medical treatment, that is the surgery, and the appellant's current condition, namely, the neuropathic pain. The submissions of the appellant [8] The appellant properly concedes that the issue of pain alone as a personal injury cannot now be advanced, because of a recent High Court decision. [9] The appellant submits that if the appeal is not allowed to proceed then the Judge's views on the law relating to medical misadventure will stand and be followed. It is submitted that the Judge's view of the law on medical misadventure and the division between treatment, consequence and personal injury was 011-2004 3 fundamental to the way he approached the case and his interpretation of the evidence. [10] The appellant analysed the chronological sequence of the evidence and submitted that the pain presently now experienced by the appellant was linked to the surgery. [11] The submission was that in the case of medical error the connection between the injury and error had to be clearly demonstrated, but in the case of medical mishap the exact way an adverse consequence came about did not have to be shown. The submission was that if adverse consequences occurred they were covered if the consequences were rare and severe. The appellant submitted that causation only had to be shown on a balance of probabilities and that here there was a temporal and physical connection sufficient to establish causation. The issue of causation was a legal question and not a medical issue. The respondent's submissions [12] The respondent submits that this appeal was essentially determined on a factual finding by the Judge on the basis that there was no causal association established between the medical treatment, that is the surgery, and the appellant's current condition, namely neuropathic pain. The respondent submits that the finding on this ground was clearly a matter of assessing the medical evidence available to the Judge and as such was a determination of medical fact. No issue of law was involved in this finding and this finding was fundamental to the appellant being able to successfully bring a claim of medical mishap. This issue is uncomplicated by questions of pain being an injury or issues of the natural consequences of surgery. The issue addressed is simply whether the medical treatment caused the condition for which cover was sought. The burden of the medical evidence, apart from the evidence received from the pain clinic, was to the effect that there was no causal association between the surgery and the neuropathic pain. Decision [13] In my view, the respondent has accurately submitted that the learned Judge as a matter of fact, on the evidence that he assessed, established that there was no 011-2004 4 causal connection between the medical treatment (that is the surgery) and the appellant’s current condition, namely, neuropathic pain. [14] In my view, this was not a point of law that could be stated in respect to the proposed appeal. His Honour Judge Beattie decided this issue upon the facts, and after a consideration of the relevant medical evidence that was tended to him. This case was determined on its own particular medical facts, and the Judge assessed those facts against the medical evidence. There may have been differing medical opinions on this issue, but His Honour was called upon to decide the issue after considering all the factual background. His Honour was called upon to decide which medical opinions he preferred against the onus of proof. His Honour decided against the appellant. A finding against the appellant on this particular issue is fatal to the success of the appellant’s claims. [15] The Judge’s decision preferring one set of medical opinion to another does not normally amount to in itself a relevant issue of law, which may be stated for appeal (Teen v ACC High Court, Wellington, CIV-2003-485-1478, 11 November 2003 – Wild J). [16] The other issues raised by the appellant may raise interesting questions of law, however, if the point is academic and there does not exist between the parties a matter in actual controversy which is determinative, then leave should not be granted. The reason for this principle is that no useful purpose will be served between the parties; see, for example, Finnigan v NZRFU (No. 3) [1985] NZLR 190 and Wardle v ARCIC, AP 134/02, High Court, Wellington, 27 February 2003. [17] For the reasons that I have given, I would not grant leave to appeal as a substantive factual matter has been decided by Judge Beattie and it is determinative of the rights of the parties in this case. DATED at WELLINGTON this 11th day of February 2004 (J. Cadenhead) District Court Judge 011-2004 5