Adcock v Accident Compensation Corporation

IN THE DISTRICT COURT [2013] NZACC 404 HELD AT INVERCARGILL IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN LILLIAN MARGARET ADCOCK (ACR 792/11) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at INVERCARGILL on 15 November 2013 APPEARANCES Mr P O'Sullivan, Advocate for Appellant. Mr H Evans, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] This appeal involves two decisions of the respondent which are in effect two decisions relating to the same claimed injury condition. The first decision was issued by the respondent on 29 June 2011, whereby it declined to grant cover to the appellant for a treatment injury claimed to have arisen in the course of surgical treatment on 12 January 2011. The second decision was issued on 28 July 2011 when the respondent again declined to grant cover for a treatment injury said to have arisen following physiotherapy treatment on 27 June 2011. The respondent's decisions were in fact the same in respect of both claims and it determined that there was no evidence that the appellant had, in fact suffered a personal injury arising from the two treatment occasions, and that the appellant's medical condition arising from those situations was simply that of pain, but with there being. no evidence of a physical injury giving rise to the cause of that pain. 2 [2] The background facts relevant to the issue in this appeal may be noted as follows: At the time when the appellant lodged her claims for cover she was 44 years of age. On 12 January 2011 the appellant underwent right buttock abscess surgery, and when she awoke after that surgery she was experiencing significant pain in her right leg and lower back. On 1 April 2011 the appellant lodged a claim for a treatment injury arising from that surgery event. Prior to the claim being lodged the appellant was seen on a number of occasions by various medical personnel, and the comments made will be referred to later. Also included at that time was an MRI scan. Following the obtaining of reports in June 2011 the respondent issued its decision of 29 June 2011, declining to grant cover on the basis that there was no evidence that the appellant had suffered a physical injury arising from the treatment she had received in January 2011. It was contended that at most the appellant was suffering from pain arising from that injury event, but no physical injury had been caused. It is the case that on 27 June 2011, the appellant was receiving some physiotherapy and whilst laying down and having her leg stretched ? she again felt pain in her back, and it was as a consequence of that event that a second claim for a treatment injury was lodged. It is the case that in its decision of 28 July 2011, the respondent advised that it could not grant cover for a treatment injury on the basis that again there was no evidence of a physical injury, but rather only a situation giving rise to pain. The appellant sought reviews of those two decisions, and both decisions were heard at the one review hearing on 21 October 2011 and in a decision dated 17 November 2011, the Reviewer confirmed 3 the correctness of the respondent's decisions, he determining that there was no evidence that the appellant had suffered a personal injury caused by the surgical treatment she had undergone in January and June respectively. [3] The relevant medical evidence in this appeal as provided to the Court may be noted as follows: 1. Surgery Report from Dr M R Kasri of Southland District Health Board dated 14 January 2011 This was a report to the appellant's GP, Dr Allen, and was dated the day after the appellant had been discharged from hospital following the surgery she had undergone. That report stated, inter alia, as follows Ms Adcock was admitted with cellulitis of the right buttock. She had been using hormonal patches, applied topically to her buttocks, and the area where the patch had been was erythematous and tender. There was a palpable subcutaneous collection. Intravenous augmentin was prescribed. She was brought to theatre for incision and drainage. 10-15 mis of pus was drained from the wound, and the wound washed out. It was then dressed with Algisite. Mrs Adcock recovered well and was discharged. No antibiotics required as abscess already been drained. 2. Radiology Report from Dr J Mccormick dated 19 January 2011. This was a report following an MRI scan and it was noted as follows: Saittal, axial and coronal T2 SPAIR and T1 scans have been performed through the pelvis. Increased T2 signal is seen in the subcutaneous tissues of the right buttock with more focal areas of thin slivers of fluid seen. The fluid is seen immediately deep to the site of the abscess and lies superficial to the gluteal fascia. Fluid tracks superior along the tissue planes to lie in the subcutaneous tissues of the lower erector spinae muscles in the midline. No discrete collection or tract is seen. A small amount of free fluid is seen in the pelvis. No deep collection nor extension is seen. Comment: Oedema and post procedure changes at the site of the previous abscess. No tract nor collection is seen. 3. Report from Dr I Bloomfield, Surgical Registrar, dated 10 February 2011 to appellant's GP We have seen Mrs Adcock again. This lady has been seen previously with regards to her buttock abscess and ongoing leg pain. It is now clear that the buttock abscess is more or 4 less resolved, there is no ongoing inflammatory or infective process. So it is clear that the abscess is not the cause of her ongoing leg pain. The feeling would be that these neurological signs would be related to sciatic nerve entrapment, and the question is whether this is arising from the back. The abscess clearly is not the cause of compression, as this has resolved and also subsequent MR of the buttock area demonstrated no collection or pressure around the deeper structures in the gluteal region. Report from Dr R Diaz, dated 1 March 2011, Southland Hospital Emergency Department. Following an examination of the appellant Dr Diaz noted, inter alia, as follows: 44 yo with no hx of chronic back pain who developed a right buttock cellulitis/abscess requiring I & D several weeks ago. This is healing well but since then she has had sharp pain in the lower back which radiates to the right knee. Sharp and stabbing in character, was exacerbated today after vacuuming. She has been referred to ortho who has ordered an MRI which shows multi level mild lumbar disc herniation and a small annular tear at L5/L1 with mild to moderate nerve root hypertrophy. No nerve root impingement at any level. She has been on morphine 20 mg bid for several weeks. The impression was recorded as: Acute on chronic lower back pain. And then later as: Severe lower back pain with radicular symptoms without antecedent trauma. Has recent MRI showing no spinal cord compression: due to severe difficulty mobilising, will keep in ED for pain control and muscle relaxants. Will need ortho review in am if still unable to mobilise. 5. Report from Dr W Kamali, Resident Surgeon, Kew Hospital, dated 3 June 2011. Dr Kamali had performed the surgery on the appellant back in January 2011 and he stated the circumstances of that surgery as follows: My name is Dr Wali Kamali; I am working in Kew Hospital Invercargill as Senior Resident Surgeon. I performed Incision & drainage of the right buttock abscess on 12/01/11. I drained 10-15 ml of pus from that area. Abscess was just skin deep, so I only explored skin & subcutaneous area. Nerves and muscles are deep to It is unlikely that surgical procedure caused any nerve/muscle injury. Her problem could be coincident? But it is not due to operation. Southland Hospital Emergency Department Report from Dr A Shute dated 27 June 2011. This was a report following the appellant being treated on that day. Recent history of I & D of right buttock abscess with subsequent lumbarsacral radiculopathy MRI demonstrated. L5/S1 small disc protrusion. Under Mr Fosbender who felt conservative MX appropriate and has been seeing physio with good results. Recently has been much better, back at work and no pain relief or crutches needed. Today was at physio, lying on front and having legs stretched up backwards. Felt sudden pop in lower back with pain. Physio stopped and she walked to car before driving home Pain got worse with spasm feeling, took Tramadol and ice pack to no effect. Got husband to bring her in. Also had Paracetamol and Ibuprofen with no effect. Currently is in a lot of pain - sharp and stabbing in lower back rad?? down right leg with pins and needles, worse with movement. . . . 7. Report from Dr A Shute dated 29 June 2011. After being discharged, the appellant returned to the Emergency Department, and was again seen by Dr Schoote. Dr Schoote recorded his examination of the appellant and the following impressions. 1. Acute on chronic lower back pain following recent physio manipulation. 2. Some lower limb neurology findings: weakness appears 2 to pain, able to walk reasonably well, sensory findings previously noted in Jan 2011. 3. Pain control issues. 8. Report from Mr Graeme Inglis, Orthopaedic Surgeon, dated 10 April 2012 to Dunboy Advocates. Mr Inglis had examined the appellant in July 2011 and was asked to report on his assessment of the appellant's situation, and he stated, inter alia, as follows: Mrs Adcock was initially reviewed by myself in December 1992 suffering from back and leg pain. She was investigated at that time with a CT scan confirming a central 5-81 disc protrusion without evidence of nerve root compromise. A follow up radiculogram failed to reveal any evidence of nerve root compromise or other significant pathology in her back. Mrs Adcock was referred on for conservative management in 1992 . .. . Mrs Adcock was next reviewe 1 with a history that is recorded in the copious volumes of notes provided. I will not repeat this other than to summarise that she underwent a surgical procedure to drain an abscess and awoke from that procedure with back and leg pain. After multiple assessments by the general surgeons followed by orthopaedic involvement, investigation with MRI scans, no cause for her disabling back and right leg pain could be found .. There is no evidence on her recent scanning of an acute injury to her back in the form of a disc prolapse or any other significant pathology. The changes seen are related, the contributing factors to those changes are multi factorial. I would suggest therefore that the contribution to Mrs Adcock's pain and disability is a multi factorial one, the incidents described in her history are a relatively minor contributor. ... I can find no objective evidence of a significant injury that has occurred to Mrs Adcock's back as a result of treatment provided to her during 2011. [4] It was Mr O'Sullivan's submission that the appellant did suffer injuries arising from the treatment episodes, those injuries being soft tissue injuries, with the physical conditions being muscle injuries. He referred to a radiology report provided by Dr J Arthur, Radiologist, in August 2011, when he noted that on the thoracic spine there are small marginal osteophytes and no other abnormality seen, and he further noted that there was an osteophyte formation in the cervical spine, but no acute bone or joint abnormality seen. [5] Mr Evans, Counsel for the Respondent, submitted that there was no evidence of the appellant suffering from an injury during the course of her surgery, and he submitted that tenderness or pain are not injuries themselves and there is no evidence of an acute injury suffered by the appellant, but rather the appellant's problems arise from age related phenomena. [6] Counsel submitted as there is no evidence of any physical injury, there can be no entitlement to cover, and therefore the respondent's decision declining cover were the correct decisions based on the evidence in this case. DECISION [7] The claim for cover in this case is a claim for a treatment injury and as such the provisions of section 32 are the relevant provisions of the Act. It is the case that it must be established that there is a physical injury and that physical injury has been caused by the activity of treatment which the claimant was undergoing, and it is a necessary factor that the injury cannot be determined as being a necessary part or ordinary consequence of the treatment and having regard to the person's underlying health condition. [8] The primary factor in section 32 is of course that it must be established that there is a personal injury, and it is a statutory requirement contained in section 26 that personal injury must involve a physical injury suffered by the claimant. [9] Having considered the various medical statements relating to the appellant's medical condition subsequent to the two medical activities in January and June 2011, 1 find it to be the case that there is no evidence that on either of those occasions a physical injury was caused in the treatment event which has given rise to the ongoing pain condition which the appellant has experienced 7 [10] It is the case that the appellant was suffering from medical injury conditions which had not been the subject of any cover, and it is therefore the case that any pain which may have arisen from those conditions cannot be the subject of a claim for cover. [11] I find it to be the case, based on the evidence from specialists who examined the appellant and who had considered MRI scans after the events, that the only ongoing situation which the appellant was experiencing was that of pain, and if that pain had in fact been caused by treatment which she underwent for the drainage of her right buttock abscess, then that is not a treatment injury situation, but it is the case as advised that the buttock abscess is resolved and it was not likely to have been the cause of her ongoing leg pain. [12] I find it to be the overwhelming evidence that the only condition which the appellant is suffering, or was suffering at the time when the claims for cover were made, was that of low back pain and that condition could not be associated with any physical injury which could be stated as having been caused by the treatment which the appellant underwent on the two occasions referred to. As was noted by Mr Inglis, Orthopaedic Surgeon, there is no evidence of the appellant suffering an acute injury to her back in the form of a disc prolapse or any other significant pathology, and certainly there was no evidence of an injury having been caused as a result of the treatment provided to the appellant during 2011. [13] On the basis of the medical evidence which has been presented to the Court, I find that there are simply no grounds for establishing that the appellant is entitled to cover for treatment injuries pursuant to section 32 of the Act, and therefore the respondent's decisions declining cover were the correct decisions and the appeals from those decisions are therefore dismissed. DATED this 3'd day of December 2013 kathi M J Beattie District Court Judge