Chan v Accident Compensation Corporation

IN THE DISTRICT COURT AT ROTORUA (2015] NZACC 273 ACR 11/14 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 151 OF THE ACT BETWEEN LEROY CHAN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 17 August 2015 Appearances: The appellant in person D Tuigeregere for the respondent Judgment: 10 September 2015 RESERVED JUDGMENT OF JUDGE A N MACLEAN Introduction [1] This case involves a treatment injury claim in respect of funding for physiotherapy treatment and orthotics sought in respect of a left foot injury sustained over 20 years ago, when, on 5 March 1995 the appellant jumped off a balcony whilst on holiday, landing heavily on his feet. [2] A claim was lodged in 1995 and a brief period of treatment funded but it was not until April 2013 that the matter was taken up again by the appellant for further funding assistance following a consultation with Mr Surtess an Orthopaedic Surgeon ,about persisting symptoms . [3] Understandably, there was a relative paucity of information relating back to the original claim other than the appellant's personal recollection , although in due course historic relevant x-rays were obtained. [4] The Court , and the reviewer from whom a declining decision was appealed, were provided, with and the appellant largely relies on, both information from himself and from Mr Surtees, Mr Donovan, another Orthopaedic Surgeon , and Mr Loveless, a physiotherapist in support of the proposition of a causal link between the accident and problems still being experienced 18 years later. This needs to be weighed in the balance with contrary opinion from, Mr Marshall a Clinical Advisor to the respondent, and Dr Reeves together with a CAP opinion. [5] There is no dispute that an accident occurred in 1995, nor that the appellant has problems including pain in his left foot and the focus of the appeal, as with the review, is on whether a causative link has been established, on the balance of probabilities, between the events in 1995 and the present problems. [6] The appellant challenges two decisions by the respondent in respect to problems with his left foot, namely the declining of physiotherapy treatment on 2 May 2013, and of funding for orthotics on 17 June 2013. 7] There are two key factors involved in the analysis to be carried out; firstly related to the gap of 18 years between the claim and the covered accident and secondly, how to deal with conflicting medical evidence, where on the one hand, the respondent's advice is that there is insufficient evidence of a causal link but, on the other, the appellant has adduced alternative specialist evidence opining that there is likely to be such a link. [8] There seems no reason to not accept that the sequence of events at the time of the original accident was, generally in terms of time frames and the event itself , as set out in a letter dated 10 September to Mr Donavan from Mr Surtees although obviously based on what the appellant had told him : In 1995 Leroy injured his left foot when he was on holiday in China and dropped from a balcony, a distance of about 30 feet. He landed heavily on his feet and felt immediate pain in the Rt mid foot. He had it x-rayed there which showed nothing but persistence of symptoms caused him to have it checked again here in New Zealand and he was told there was a small chip fracture of one of the mid foot bones. Leroy has continued to experience pain intermittently of variable severity along the medial border ever since. He has learned to live with this but he does find that sometimes the pain is significantly more severe . When the foot is uncomfortable the pain across the medial mid foot is exacerbated by forceful flexion of the great toe. [9] The Court accepts the appellant's recall of the immediate onset of pain occurred and that the force involved would have been reasonably significant bearing in mind the height of the drop. [10] The Court also understands, and accepts, that the appellant has a genuine reason for the 18 year delay in seeking further assistance namely, as he explained in his submissions, that he did not fully appreciate the nature of his entitlement, coupled with a feeling of not wanting to be a burden and that the injury arose from an act of his own stupidity. [11] Having heard from the appellant, who made his submissions personally and impressed as to his credibility , it is clear that he has a genuinely held belief that the proposition that the symptoms he now has are wholly or substantially degenerative in nature, and not causally linked with the accident is wrong . He points out that the pain issues have always been just with the left foot, not both. He gives a credible account of what happened and the relationship between the pain he experienced then and later . [12] There is conflicting specialist medical evidence available. [13] Firstly, there is the opinion of Scott Burns, Clinical Advisor on behalf of the respondent who, after considering an MRI scan arranged by Mr Surtees noted: Satisfactory mid and forefront MR examination. There is no evidence of prior old fracture or significant ligamentous injury. No subluxation. The remaining periarticular soft tissues are satisfactory. No tendinopathy or synovitis demonstrated. [14] Mr Burns concluded that the clinical evidence suggested a biomechanical problem which had become symptomatic over time, with no indication of old injury and noted the delay in bringing the claim. [15] Based on that, the respondent declined to fund physiotherapy treatment and also declined the orthotics request. [16] On 2 July 2013 Mr Surtees indicated a suspicion that the foot pain was most likely related to the injury and due to post traumatic osteoarthritis which had not been recognised on the earlier MRI scan. [17] On 25 july 2013, Mr Marshall a Physiotherapist , Clinical Advisor , after noting the history and information available advised that he believed the appellant was suffering from bilateral flat foot that was degenerative in nature and not injury related .He noted an absence of satisfactory evidence of an acute injury or fracture and disagreed with Mr Surtee's suspicion of post traumatic arthritis [18] On 24 September , Mr Surtees took issue with that and suggested getting another opinion. [19] Mr Marshall's view was reinforced by comment from Mr Colvin, Clinical Advisor on 3 October 2013, noting that there was no information to support the contention of a fracture or significant ligamentous injury in 1995.Also noting bilateral over pronation,he opined that the discussed clinical link fell into "the realms of possibility" and that his view the condition as "likely being bilateral adult acquired flat foot" resulting in midfoot osteoarthritis [20] When Mr Surtees was asked for further comment he referred the matter to Mr Donovan, who reported on 8 November 2013. [21] Mr Donovan noted an asymmetric foot with loss of the medial arch on the left compared to the right. He reviewed the MRI scan and x-rays and noted that there were no obvious significant degenerative changes to any of the tarsal-metatarsal joint or the intertarsal joints concluding: I feel he has a post traumatic problem. I suspect he had either a minor tibialis posterior avulsion or spring ligament sprain or injury at the time of his fall which has resulted in an increased flat foot or planovalgus deformity on the left compared with the right which is causing his ongoing symptoms. I do not feel this is a gradual process injury and I feel this is related to the previous trauma. I am writing to a radiologist colleague of mine to relook at the MRI scan films and see if she has an opinion on that spring ligament. In the meantime I feel Leroy's symptoms are controlled with his orthotics and I would continue with those. [22] Mr Marshall further commented the following month, confirming his view of insufficient evidence, and opining that neither Mr Surtees nor Mr O'Donovan had provided any foundation to support their opinions on causation. [23] The reviewer accepted that view, finding on 11 December 2013 when dismissing the applications that: I find it more probable that Mr Chan is suffering from a development gradual process condition which is also evident on the right side rather than having suffered a distinct one off injury now requiring treatment and orthotics. [24] Subsequent to the review decision the appellant has provided a physiotherapist report and orthotic photographs supporting his proposition that while he may have been diagnosed with flat feet the degree of flat footedness is not advanced. Also to prove, (which is accepted) that he has been using orthotics ever since the accident. 25] Mr Burns, Mr Marshall and Mr Colvin have in various reports made the following points: The MRI evidence indicates a bilateral biomechanical problem (i.e. flatfoot). Flatfoot is a common problem in the aging population and there are a number of reasons for its developing including biomechanical factors. The MRI evidence does not provide any indication of an historic injury. The 18 year delay. No evidence to establish post traumatic osteoarthritis. No evidence to support the contention that there was any kind of injury of significance in 1995. [26] This view was also supported by the Clinical Advisory report including Dr Reeves noting that: The clinical symptoms did not match with the pathology present on scans. While it is possible that the appellant's symptoms could be attributable to the 1995 injury that would have had to have been one of significance and on the evidence available such an injury is not indicated. Analysis and Discussion [27] The end result of the conflicting medical opinion brings into focus the dilemma for this Court when causation issues with conflicting evidence need to be resolved. [28] The principle in paragraph [73] of Ambros' states: The generous and unniggardly approach referred to in Harrild may however support the drawing of a robust inference in individual cases. It must however always be borne in mind that there must be sufficient material pointing to proof of causation on the balance of probabilities for a Court to draw even a robust inference on causation. Risk of causation does not suffice. [29] The matter is finely balanced and the question is whether on the evidence available there is sufficient of a springboard existing for the Court to draw the necessary robust inference of causation in this case. [2007] NZCA 304 [30] In my view the specialist evidence against the appellant is to some degree influenced by that there is insufficient evidence of injury and the mechanics of force involved, because of the lapse of time. Dr reeves considers a possibility of causal link but that it requires that there be an injury of "significance " [31] In my view this somewhat colours their approach and I does not sit easily with the totality of the evidence available to me , including in particular, the quite sincerely held and well expressed views of the appellant this was quite a significant event. A fall of 30 feet onto the feet is not a trivial matter but a significant matter [32] Also two well regarded specialists are, notwithstanding the views of the experts for the respondent of the opinion that there is a good likelihood of a causal link. [33] It is not necessary for the appellant to establish beyond reasonable doubt that degeneration is not wholly or substantially the cause of his condition and while there is expert file review opinion suggesting that the cause is more likely to be developmental or degenerative and not necessarily connected with the accident in any way, there is compelling counter opinion from specialists who saw the appellant . [34] One would expect that if it is a degenerative condition that it would be affecting both feet in the same way and the evidence seems to be that that is not the case. The focus of problems is on the left foot. [35] In my view, there is sufficient in the combination of the historic description of events from the appellant, coupled with the expert opinion he adduces in support of his claim, to warrant the Court making a robust inference of causation. Accordingly the appeal is allowed, the reviewer's decision quashed, and the declining decisions of the respondent overruled. The respondent is required to fund orthotics and appropriate therapy. [36] Costs potentially are an issue, although the appellant having acted for himself throughout may not be able to actually make out the case for anything particularly significant other than directly related expenses which would not include compensation for loss of professional time through preparation of the case. I will leave it to the parties to resolve if they can but if not will determine this on the papers provided submissions are filed within one month. Judge A N MacLean District Court Judge 1-14-Chan(aw)