Florance v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 90/2003 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN LYNETTE JOAN FLORANCE of Lower Hutt Appellant (Appeal No. AI 87/02) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on 16 April 2003 APPEARANCES/COUNSEL J M Miller with S Thistoll for appellant S Jerebine for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON [1] The issue in this appeal is whether the decision of the respondent issued on 19 July 2000 declining the appellant’s application for an Independence Allowance was correct. The Facts [2] The appellant suffered a back injury in 1981 which was subsequently assessed as constituting an impairment of 20% for which she received the appropriate lump sum award under the Accident Compensation Act. [3] In January 2000 the appellant applied to the respondent for an Independence Allowance based on her claim that she suffered ongoing symptoms from the back injury, including an incontinence problem. 2 [4] The appellant was referred to Dr H Snoek, a duly approved Independence Allowance Assessor, who assessed the appellant on 29 March 2000. [5] In his report of 3 April 2000 Dr Snoek stated that the medical information provided to him constituted: □ An orthopaedic report from Mr R Fong dated 31.01.84; □ An orthopaedic report from Mr R Fong dated 23.03.84; □ A report from Mr Fong dated 1.07.83; □ A report from the appellant’s GP dated 6.05.82; □ A report from Mr Fong dated 19.04.82. [6] Dr Snoek concluded his report as: “Impairment Rating: This is a complex situation. Mrs Florance has not worked for nearly 20 years following a fall in 1981. She has had constant, chronic back pain since that time and has developed symptoms suggestive of nerve involvement in the last few years. There is no recent data touching on the underlying structural problems. The AMA Guides rate back pain on page 102. Mrs Florance has a history compatible with an injury. She certainly exhibits intermittent muscle guarding and non-uniform loss of range of motion. She does possibly have some signs of radiculopathy in that she is missing an ankle jerk on the right. No comment can be made about loss of structural integrity as there are no recent X-rays. With the possible radiculopathy, Mrs Florance is most suitably rated a category 3 impairment. This is associated with a 10% whole person impairment. No attempt has been made to include bladder and bowel problems in this assessment. This is because no medical link has been established between the fall in 1981 and the development of urinary/faecal problems in the late 1990s. This is not to say that no causal link could exist, simply that none has been established, and none is likely. Other pathology certainly exists that could cause the reported alterations in bowel and bladder control.” [7] As a result of Dr Snoek’s assessment the respondent issued a decision on 19 July 2000 confirming that the appellant suffered a degree of impairment which was less than 10% after taking into account the 20% disability for which she had already received a lump sum payment. As a result she had no entitlement to an Independence Allowance. The appellant applied for a review of that decision. [8] At the review hearing the appellant submitted that she had suffered a considerable amount of bladder and bowel problem, which had commenced shortly after the 1981 accident. [9] In support of the application for review the appellant submitted a report dated 16 August 2001 from Mr Fong, an Orthopaedic Surgeon. In that report Mr Fong stated: “The back pain started in 1981 when she had a severe fall sustaining an injury to her back with persistent back pain. Of more recent times she has had two episodes of severe back pain, usually is (sic) associated with sphincter 3 disturbance of urinary incontinence, dribbling and a feeling of fullness even after going to the toilet.” Mr Fong recommended an MRI scan in order to define the problem, but the appellant considered she could not undertake the scan because she had a problem with claustrophobia. [10] The appellant submitted to the Reviewer a report dated 15 March 2001 from Mr Robinson, a Urologist. In that report Mr Robinson stated: “I think that Mrs Florance’s bladder problem is intermittently associated with the back pain problem, such that when she gets significant pain there is an afferent up-regulation in the pelvic arcs and she has a degree of detrusor sphincter dysanergia. Her symptoms would be quite typical of that and one sees this reasonably commonly with acute back problems.” [11] In his decision the Reviewer concluded: “Mrs Florance submitted that the reports from Mr Fong and Mr Robinson showed that Dr Snoek was wrong, as did the letter from Sheena Matheson. I have read the respective information and I conclude that Mr Fong wants to exclude a thoracic lesion as a cause of Mrs Florance’s bladder symptoms. Mr Robinson’s report is more general, suggesting that Mrs Florance’s form of incontinence is commonly seen in people with acute back pain.” The Reviewer then dismissed the application. Decision [12] In addition to the reports to which I have referred, the file of documents included some other reports which I consider are relevant: [a] Dr S Mossman, a Neurologist, reported to the respondent on 1 May 2001: “Back pain has persisted all the time and for 1 week of 4 is regarded as grade II – double intensity of grade I, and for 1 of 8 weeks is unbearable at grade III, during which time Mrs Florance is immobilised with pain. It is in this situation that she has sphincter disturbance, when, with severe back pain, perspiring, she may have dribbling incontinence on going to micturate and on standing after completing micturition, she may be still dribbling.” Dr Mossman concluded: “To answer your current questions as I am able at this time, I think the patient was an authentic witness and her symptom protrayal is, in my mind, an accurate assessment of the severity of her problem. This seems to have been injury related – primarily in respect of her fall in 1981.” 4 [b] A report from the appellant’s General Practitioner, Dr Kupenga, date stamped 12 April 2001 states: “She also slipped and fell on 17 May 1981 hurting her back again. She was noted to be feeling a bit depressed re her back pain after this. She gets radiation of her lower back pain into her leg and has problems with poor urine flow and dribbling of urine when she has back pain.” [c] A report from Dr Kupenga dated 21 November 2001 states: “Mrs Florance suffered a back injury that has left her with chronic lower back pain, poor mobility of her lower spine and incontinence of urine and faeces.” [13] Mr Miller submitted that Dr Snoek was wrong in his assessment in failing to include the bladder and bowel problems. [14] Under clause 60(4) of Schedule 1 of the Accident Insurance Act 1998 the assessor is directed to “exclude from the assessment any impairment that does not result from the personal injury for which the insured lodged the claim for cover.” [15] While the Reviewer did not have available to him all the reports to which I have referred, I consider that his assessment of Mr Robinson’s report as representing “a form of incontinence commonly seen in people with acute back pain”, as being a general comment regarding people with back pain, failed to take into account the reason for the back pain. [16] Dr Robinson said that the problem became more evident when the appellant suffered “significant pain”, and this appears to be confirmed by Mr Fong in his report of 16 August 2001. [17] Again, Dr Mossman and Dr Kupenga confirm that the incontinence is brought on when the appellant suffers the episodes of severe pain from her back. [18] I conclude on the basis of the decision in Brider and Hughes v ACC, a decision of the High Court issued on 3 December 1998 under number AP 120/98, that the pain suffered by the appellant results from the injuries sustained in the injury to her back in 1981, and that the incontinence problems are the result of that pain and the injury. [19] While Dr Snoek referred to the fact that he had relied on page 102 of the AMA Guides in assessing the percentage attributable to back pain, he makes no reference to the fact that Chapter 15 of the Guides, and in particular paragraph 15.8, provides a guide for the estimate of impairment as a result of pain. [20] However, the appellant’s principal concern is the failure to take into account the fact that the incontinence problems are the result of the injuries received in the accident for which the appellant has cover. 5 [21] I therefore conclude that the Reviewer was wrong in holding that there was no evidence that the incontinence problems resulted from the accident for which the appellant had cover. [22] The appeal is therefore allowed and the decision of the Reviewer is quashed. I direct that the file is to be returned to the respondent which is to refer the appellant to an assessor other than Dr Snoek for the purpose of a new assessment based on the fact that the appellant suffers both from pain as a result of the injuries, which further results in the incontinence problems. [23] There will be costs to the appellant of $1,200. DATED at WELLINGTON this 14th day of May 2003 _____________________________ A W Middleton District Court Judge ai87-02.doc(aw)