Rana v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 260 /2001 IN THE MATTER of The Accident Insurance Act 1998 AND IN THE MATTER of an Appeal pursuant to Section 152 of the Act BETWEEN MADHU RANA ( AI 339/00 ) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 22 JUNE 2001 APPEARANCES: Mr K Rana, Advocate for Appellant Ms J Silcock, Counsel for Respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal relates to the respondent's decision of 30 November 1999 to decline to provide entitlements to the appellant for the period 1 August 1998 onwards on the grounds that she was no longer suffering from the personal injury by accident for which she had been granted cover. [2] The facts which are relevant to the determination of this issue, as I find them to be, are as follows. 339 00Rana.doc (jed) [3] In a claim form received by the respondent on 8 September 1998 the appellant sought weekly compensation for loss of income from her part time job at Farmers Trading Company where she was employed one day a week. [4] The claim indicated that she had slipped whilst walking and had suffered a sprained ankle. The dates of the accident were stated as being February 1998 and June 1998. [5] Details from Farmers showed that the appellant worked for it as a sales person at its Manukau City store on Saturdays. It transpires that the appellant also had a full time job as a Teacher Aide but no claim was ever made for any loss of wages from that employment. [6] A medical certificate signed by the appellant's GP Dr Ah Kit, advised that the appellant had been unfit for work from 20 July 1998 but would be fit to attend work on 20 September 1998. The diagnosis that he gave was left ankle strain. The work restrictions stated were "unable to stand for very long periods - unable to perform shop assistant role at Farmers." The medical certificate indicated that Dr Ah Kit examined the appellant on 4 September 1998. [7] The respondent sought further particulars of the injury from the appellant's GP and he provided copies of his notes. Those notes showed that on 25 February 1998 the appellant slipped going up some stairs and hurt her left foot/elbow and back. There was no swelling of the left foot. A note of 26 June 1998 also stated "slipped and fell landed left side hurt left foot/ankle". Subsequent notes on 18 July, 13 August and 21 August referred to continuing pain in left foot/ankle - limping. [8] These medical notes were referred to Dr Debbie Ryan-Sheridan, the respondent's Branch Medical Adviser, and she noted that no specifics had been provided as to where the accident had occurred. She noted that there were no positive clinical signs recorded i.e. no swelling or bruising and that incapacity was based on pain alone. [9] Dr Ryan-Sheridan recommended that further information be obtained from the appellant and her doctor. [10] On 8 October 1998 the respondent received advice from Sherryl Anderson, Personnel Manager for Farmers who advised that Farmers were able to offer the appellant alternative employment which did not involve prolonged standing and this 339 00Rana.doc (jed) 2 had been offered to her but her husband had phoned to say that she could not do any work as she also had a sore back. [11] On 19 October 1998, Mr Stuart McCowan, Orthopaedic Surgeon, made a request for approval of private hospital treatment costs for the funding of a bone scan. That request was made for the purposes of clarifying the source of the appellant's problem. [12] The appellant returned the claimant information questionnaire which indicated that she had suffered three accidents namely February 1998, May 1998 and June 1998, that these accidents had occurred at work and that she had slipped and twisted her ankle. [13] The appellant's claim was again reviewed by Dr Ryan-Sheridan who recommended that the appellant be granted cover for a claim for a minor injury. She noted that it was unknown whether the chronic pain was ACC related, and further, that the nature of the injury was one where the claimant could undertake alternative duties. In that regard Farmers had again indicated that there were alternative duties available for the appellant. [14] Mr McCowan's request for a bone scan was approved and the matter was carried out on 12 January 1999. The report indicated that no abnormality was seen and there was no sign of an occult bony injury. Mr McCowan reported to the respondent following that bone scan noting that he did not have an explanation for the appellant's mid foot pain but requested for an MRI scan as the last measure to try and help elucidate it. [15] On the advice of Dr Ryan-Sheridan that there was no evidence of any personal injury and merely non-specific symptoms of pain, the respondent advised the appellant by letter dated 29 January 1999 that her ongoing pain problem was not going to be covered but that the respondent would pay weekly compensation to her for the period 27 June 1998 to 31 July 1998. [16] The appellant applied for a review of that decision and at the time the application for review was filed Dr Ah Kit provided a note indicating that the appellant had suffered a number of twisting injuries to her left foot and ankle, and since which she had persisting aches and pains in her left foot and ankle. He advised local massage and rest. He indicated that an MRI scan should be taken as had been recommended by Mr McCowan. 339 00Rana.doc (jed) 3 [17] The Review Officer, on receipt of that medical information, together with a further letter from Mr McCowan, revoked the respondent's decision and directed that an MRI scan be carried out and that the Corporation then reassess the appellant's entitlement. [18] On 8 July 1999 an MRI scan was undertaken and the report stated as follows. "No structural bone or joint abnormality is seen, and there was no signal abnormality within the bones. No joint effusion is identified. The soft tissues appear unremarkable. In particular the collateral ligaments of the ankle and the tendons above the foot and the ankle appear unremarkable. No ganglion or other soft tissue mass is seen. No cause for left foot pain is seen. [19] The Respondent thereupon referred the matter to Mr McCowan for his opinion and he responded by letter of 5 October 1999. His letter answered a series of questions that had been posed by the appellant's Case Manager. The relevant questions and answers are as follows: What is the correct diagnosis in this case? I do not know what her diagnosis is. She has always presented with a painful left foot and ankle and to the best of my ability clinically and radiologically I have not been able to identify a problem that I am familiar with. Is there any evidence in the medical data in this case that this lady has had a serious accident ? A No, I am unsure as to how to define serious accidents. In my practice which involves major trauma to Auckland Hospital I do not feel that slipping on some stairs is a serious accident. 2 Is there any medical evidence that this lady has had any physical injury as a consequence of the various incidents ? A I have not been able to identify specific pathology. Having said that there is no doubt that she reports that she was completely well until she slipped on the stairs and developed a pain in her foot. She has certainly has had some ligamentious damage that has not been able to be imaged with our current techniques. Is there any reason why this lady would be unfit to work in an occupation within her functional capability. A No, I am very happy for this lady to work in her functional capabilities. I am very keen for her to get back to work and certainly do not make recommendation that she would avoid work. If this lady were offered duties answering the telephone and work as a dressing room attendant would she be fit to do such work A Yes. " [20] It was following receipt of this advice that the respondent made a fresh decision to not provide any ongoing entitlements for the appellant after 1 August 1998. The decision letter dated 13 November 1999 was essentially on the same 339 00Rana.doc (jed) 4 terms as had been the earlier decision letter of January 1999. The letter stated that medical evidence on the file indicated that her present condition was primarily due to pain of unknown origin and not due to injury. Therefore ACC did not consider that her present condition was a personal injury. [21] The appellant applied for a review of this decision and for the purposes of that review a letter of 2February 2000 from Mr McCowan was produced. That letter stated, inter alia, as follows. "While I haven't ever been able to make a specific diagnosis there is no doubt in my mind that her problem related to a series of injuries to her foot beginning in February 1998. She reports she was well prior to that and reports that following that injury she was unable to do her usual activities including work. There are a group of people in whom we do not make specific diagnoses but who do however, experience pain and some do have local signs. The fact that we can't diagnose them doesn't mean that they do not have a problem and it is probably a reflection of the limits of our diagnostic skills both clinical and investigative. I understand that you are only accepting her claim for ACC for the initial six weeks. Under the circumstances I think this is a bit harsh for this woman who has been incapacitated for a greater period than that. I certainly do not think that any symptom she experiences 18 months after her injury could be considered a result of the injury given that we haven't specifically made a diagnosis. But I think it would be reasonable prior to that to accept responsibility" [22] A review hearing was conducted on 25 May 2000 and the Reviewer found that the respondent had adopted a fair approach in deciding to pay limited weekly compensation, but that he found there was no evidence of injury for which longer term entitlement would be justified. The respondent's primary decision was therefore confirmed. [23] For the purposes of the appeal to this Court no further medical evidence was sought to be introduced. In written submissions the appellant advised that she had to resign from her Saturday work with Farmers due to her injury as she could not stand for the eight hours that her job as a sales person required. [24] The appellant, through her advocate, was also critical of the way that the Manukau office of ACC had treated her. It was the way in which she was treated by ACC, she said, that had caused her to lose her secondary job. [25] Ms Silcock, counsel for the respondent submitted that there was no evidence of injury, even from the time of the event where the appellant's GP noted no swelling or bruising. Counsel submitted that all the medical reports were negative of 339 00Rana.doc (jed) 5 any injury and the period of time given for the sprained ankle, namely six weeks, was more than reasonable. [26] Counsel submitted that the only issue was the question of causation, not incapacity as the question of incapacity has been covered in the first review decision. Decision [27] The issue in this appeal requires the Court to determine whether or not the appellant was suffering from the effects of personal injury by accident for which she had been granted cover after 1 August 1998, being the date when the respondent ceased entitlements. [28] The medical evidence discloses that the appellant was granted cover for a sprained ankle and that it can be accepted that such an injury has with it a certain amount of pain and discomfort. The investigations which were carried out into the appellant's left ankle subsequent to the injury disclosed no abnormalities, either from the bone scan or from the MRI scan. Those reports give no reason for or clue to any injury to the appellant's ankle, be it ligamentous or bony. [29] Even an experienced Orthopaedic Surgeon in Mr McCowan was unable to diagnose any injury, or the cause of the appellant's left foot pain. Furthermore, Mr McCowan accepted that the symptoms which the appellant had been experiencing for the past 18 months after the twisting incident could not be considered to be the result of the injury of the sprained ankle, although he was unclear for what period he would consider the respondent ought to have accepted the responsibility. [30] It is axiomatic that for there to be cover and/or entitlements under the Act there must be evidence of a personal injury, that is a physical injury. It is accepted medically that the mere presence of pain does not indicate that there is necessarily physical injury. [31] In the case of this appellant all she can assert is that she is suffering from pain in her ankle but there is no diagnosed physical injury and therefore I find that the condition that she currently presents, and did present after August 1998 was not a condition which was as a consequence of a physical injury and that any physical injury that may have occurred had by then resolved. That is the evidence that was 339 00Rana.doc (jed) 6 obtained from the radiological investigations that were carried out and confirmed by the specialist interpretation of that radiological data. [32] Accordingly then, I find as a fact that the appellant could not demonstrate that she was suffering from any physical injury from August 1998 onwards and therefore, as a matter of law, the respondent was entitled to determine that her ongoing condition was not one for which entitlements could be provided. [33] The respondent's decision to provide limited cover for entitlements was therefore correct in the circumstances and this appeal is dismissed. the DATED at Wellington this 17 day of September 2001 Jenthe M J Beattie District Court Judge 339 00Rana.doc (jed) 7