Shortland v Accident Compensation Corporation

IN THE DISTRICT COURT AT WHANGAREI [2012] NZACC 284 ACR 813/10 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN MARIA SHORTLAND Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 18 June 2012 Appearances: Christina Cook for Ms Shortland Fenella Becroft for the Corporation Judgment: 22 August 2012 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] Ms Shortland has cover for a wound injury that she suffered on 16 February 2008 which, on the claim form in response to which cover was provided, was described as having been sustained in this way; Rusty nail poked into left leg when sitting down on a chair. Ongoing infection of lower left leg. [2] Following a series of events (that will be identified to the extent necessary under my subsequent "Background" heading) the Corporation, in a decision dated 10 March 2010, declined Ms Shortland a backdated entitlement for home based social rehabilitation for the period February 2008-June 2009. MARIA SHORTLAND V ACCIDENT COMPENSATION CORPORATION DC WHA [2012] NZACC ACR 813/10 [31 August 2012] [3] Ms Shortland sought a review of that declinationt, being unsuccessful in that respect, appealed to the Court. Background [4] It appears that the nail wound was suffered when Ms Shortland was helping to clean up in a Marae kitchen during a tangi and that the fact of the tangi delayed her visiting her general medical practitioner for some four days or so, [5] Ms Shortland had first sought alternative treatment from a Mrs Tawhai whom she considered successfully to have treated her parents, both double amputees, Mrs Tawhai has reported that over a period of three months in 2008 she observed and treated an open wound on Ms Shortland's left leg/calf area. For this purpose she used a variety of herbal, or their ilk, elements and medical notes from the general medical practice contain this entry for 21 February 2008; Maria applied kawakawa leaves to wound last night - slough gone now. To continue soaking leg with kawakawa leaves and given dressing to change tonight after soak. [6] Ms Shortland did not return for more conventional medical attention until June 2008 at which point Mrs Tawhai had apparently moved away from the area and was not available to assist further. [7] Home health care referral notes dated 27 June 2008 mention a diagnosis of "ongoing ulcer left lower leg" described in terms "has (had) an ulcer left lower leg since Feb 08". The then intended intervention was a home visit, or for Ms Shortland to come to the nurse for a dressing change. [8] Ms Shortland was referred to an ulcer specialist Dr Sugrue on 2 September 2008. The history he took generally corresponded with the description of the accidental injury as recorded at the outset of this judgment and (against the heading in an ARTP "Current Diagnosis") Dr Sugrue recorded a "traumatic ulcer". He proposed a surgical type treatment/study of the problem . The actual ARTP was dated 3 October 2008. [9] Prior to that Ms Shortland had received some ongoing attention per medium of the district nursing service and from the general medical practice which she attended. It appears that a MRSA" infection, consequential upon the wounding, was finally cleared by 26 September. [10] I interpolate that at a later meeting on 3 March 2010 involving Ms Shortland, her case manager and Dr Corbett (the BMA) the latter had advised that MRSA was an infection that can take a while to heal - until the antibiotics finally take effect - rather than an underlying condition. It appears to be something distinct from the issue of ulceration. [1 1] In his initial (2 September 2008) assessment of Ms Shortland Dr Sugrue stated: I understand that she knocked her leg against a rusty nail that caused a small wound which healed but within two months it had broken down and has persisted as an ulcer despite dressings. She has had no previous problems with her legs and there was no history of trauma. Fractures, varicose veins or anything else untoward. [12] As I noted at [8], Dr Sugrue had recommended a surgical type investigative process the apparent purpose of which was to ensure that there were no underlying conditions that would delay recovery. [13] But in a later letter of 23 April 2009 Dr Sugrue said: I note that the biopsy, which was taken has not shown an ulcer at all, but adjacent normal skin. The aim of a biopsy is to straddle the ulcer, so you get normal skin and ulcer, so you can make a comparison, which has not occurred'. Basically, so it would seem, a biopsy procedure. N Methicillin-resistant staphylococcus arreus - a bacterium responsible for several problematic for 3 treatment infections. It would seem that biopsy was mis-targeted. [14] He then rehearsed the following: I saw her in September last year with an ulcer on the left leg that apparently had occurred two months after an injury from a rusty nail. The original injury was a small would that had healed, but it broke down two months later. The possibility of this being true in that it was the primary wound that healed would hold water if there was an underlying condition such as varicose veins or some other cause for oedema. This report does not seem totally to align with his original 2 September 2008 advice (composed when he first saw Ms Shortland) that the original wound had broken down within two months and had persisted as an ulcer. [15] The BMA reviewed the file on 25 November 2008. He concluded the position to be that, because the injury had apparently healed at some point, the then current condition was unrelated to the accident. It was, it seemed to him, a case of an ulcer in a similar place, but one that came afterwards and independently. And a later again 23 April 2009 report Dr Sugrue did say that: If this lady has no underlying condition, then the primary cause of this ulcer would not be the rusty nail, because there is nothing to cause a recurrence. However, so far as I can see, the issue of whether or not there was (or was not) an underlying condition appears never to have been resolved. [16] Some five or six weeks before, a community nurse had written to the Corporation seeking home help for Ms Shortland. The ultimate reaction of the Corporation to that request was its 10 June 2009 decision which said: ACC has considered all the available medical information ... we regret to inform you that we must decline the request to fund home help under this claim, as previously discussed The medical information available indicates that the current condition is not the one caused in the original accident - the current ulcer is in a similar place but came on after the original had healed. The second opinion requested from Dr Sugrue confirmed this. We note your comments that there was an incident with a car door which had possibly contributed to the condition. We were unable to locate a claim for this accident, or any reference to it, among the medical information received. We recommend you discuss this incident with your GP or specialist. We have also made a referral to NorthAble to assess whether they can provide home-based rehabilitation, and encourage you to accept this assistance should you qualify. We have also advised Dr Hopper, Dr Sugrue, and district nurse Margaret Hand of our decision. [17] In September 2009 Ms Shortland sought a review of this decision. Then on 1 1 January 2010 the Corporation communicated that it had agreed it would now pay backdated home help. In fact the review hearing had not been set down within the three month mandatory timeframe and so Ms Shortland was entitled to a deemed decision in favour of home help entitlement , [18] The Corporation indicated at one point that such help would be provided up to the point of the June 2009 decision, but no further, because it did not consider Ms Shortland's ongoing symptoms to be injury related, [19] However, and more consistent with its then obligations, Ms Shortland was advised (per medium of a handwritten note she got from her case manager) in these terms: ACC will agree to pay backdated home help from when Maria's nephew was doing. This means ACC is deeming this decision until NorthAble took over cares (3/10/09), (18/02/08-31/10/09). [20] On the strength of that, Ms Shortland withdrew her original review application of the 10 June 2009 decision on 25 January 2010, that being the same date that the Corporation wrote to her more formally saying; As discussed we have agreed to pay backdated home based rehabilitation for this injury. However the evidence used to make our original decision is still valid and as such we must decline to fund further home based rehabilitation. [21] Anyway on 16 February 2010 the Corporation met with Ms Shortland after which it wrote to her on 23 February 2010 in these terms: At (the 16 February 2010) session we clarified the following points; Section 146. This letter smacked, perhaps, of an informal (non-compliant with s 64) attempt at a decision using (but without so saying) s 65 to get over the deemed decision, or otherwise seeking to limit its effect. 1. Emphasised that your current incapacity is not likely related to original "rusty nail" claim. Current incapacity is more likely related to recent injury involving wooden shards in the leg (no claim has been lodged for this yet). Some of earlier capacity (sic) also likely to be related to the car door incident (date uncertain - claim was never lodged for this, despite recognition in medical records). Also at you are receiving cares for current incapacity through North Able (not ACC) 2. Acknowledged there is a gap in both medical and nursing records between March-June 2008. Nursing records start from June, the first request to ACC for community nursing dated 27,06.08, You advised you thought you had been referred for this earlier but that nothing seemed to happen and mostly treated yourself with some help from a Maori medicine practitioner. 3, Confirmed that the advice given that we would backpay for home help following previous review was incorrect. We have agreed to refer for an assessment by an occupational therapist to work out the injury-related care hours you would have required throughout the period in dispute. This will then need to be checked against the medical evidence, before we can make a decision on whether to backpay, and if so how much, If it is found that we still cannot pay, review rights will again apply. 4. Established that there are now three separate incidents for which claims have not been lodged - the car door incident; an incident involving Janola in the eye, and most recent incident involving wooden shards in the leg. We may need to follow up with GP regarding why these incidents have not been lodged as there is a possibility of entitlements relating to any or all of these incidents. ... (Emphasis added) [22] In March 2010 Ms Shortland's previous home help needs were assessed. A report dated 4 March 2010 included the advice that, had Ms Shortland been assessed early on, she would have been likely to have received the following: [a] Education on pacing and elevating the lower leg; [b] Equipment such as a perching stool to reduce pain and fatigue on leg; [c] Some home help to assist short term while the wound was healing. The period when, seemingly, with the tacit approval of her GP, Ms Shortland was in the care of the Maori health practitioner, [23] In terms of support time based on "guidelines" there was reference to home help of 11.75 hours (presumably per week). Those hours appear to have related to household management support. There is later mention of 5,25 hours per week for support with showering and dressing - 45 minutes a day but (if I read things right) a form of help later identified as 3.5 hours a week, [24] A few days later there was an (internal to the Corporation) panel review of the case at Whangarei leading to the recommendation; Client has been assessed for social rehab needs as per deemed decision instructions. However following assessment and review of Mr Sugrue's report it is confirmed that client does not have entitlement for home based rehab as Mr Sugrue confirms that original wound had healed. An ulcer then formed at the site two months later for (sic) which was not the result of a covered injury. [25] The Corporation's 10 March 2010 decision the subject of the unsuccessful review, and now this appeal, then followed. Affidavit evidence of Ms Shortland [26] It was anticipated that following the hearing of this appeal on 18 June 2012 Ms Shortland would make an affidavit the purpose of which would be to assist the Court with clarification of what actually in the sphere of home help, [27] In her consequential affidavit she said this; 2. I have been asked to clarify the dates where I received assistance for home help. 3. An assessment was undertaken by NorthAble on 25 August 2009. 4. Upon checking my records the first date I have for receiving any payments was 19 October 2009. 5. At the meeting with the Corporation which was dated 25 January 2010 the Corporation agreed that they would backdate home help from when my nephew started doing the work for me (refer handwritten agreement document No 18 of the bundle of documents)'. That document is not thus specific. 6. My nephew started working for me from the beginning of June 2008. 7. I have had a look at the assessment undertaken by Frances Coutts being the integrated assessment report (refer document 20 page 53 of the bundle of documents) and I confirm that the tasks undertaken by my nephew were consistent with the assessment that she made for me as to my needs when the original injury occurred. 8. I seek that the Corporation make payment for the home help that they had agreed with me to make from June 2008 until I received the payments from NorthAble. (Emphasis added) The law [28] In the confusing and altogether too informal picture that the singular to this case processes that the Corporation followed have generated, this much seems clear: that Ms Shortland did get the statutory benefit of a deemed review decision which in terms of's 146(1) means "a decision on the review in favour of the applicant". [29] But, at least in this case, that begs the question of what, precisely, by way of home help entitlements, Ms Shortland was thus to get, It seems that at first the Corporation spoke in generalised terms of backdated support and then, later appreciating that what properly should be paid needed to be identified or worked out, took the position that there should be an assessment as indeed followed. [30] As to the legal parameters here, home help awards are made under ss 79, 81-84 and cl 17 of the First Schedule of the 2001 Act. Submissions for the Corporation [31] In the present case the position of the Corporation is that its 10 March 2010 decision to decline home help was made upon the basis that that help (albeit justified in fact) was not required as a consequence of the February 2008 injury because the need (arising, as the Corporation saw it, from an independent ulceration) was not causally linked to that. Thus it is both appropriate and convenient to address its submissions first. [32] The Corporation's fundamental submissions were these: 3,23 ... the Corporation did obtain an assessment of need subsequent to the deemed review decision thereby giving effect to (that). (That) highlighted that the appellant's symptoms, which resulted in a need for home help, were not related to the covered injury ... the Corporation (was) then entitled to issue a further decision declining home help on the basis that the assessment did not recognise any injury related need ... 3.24 ... the deemed decision only existed for periods from March 2009 (when the application was made) up until June 2009 (when the application was declined) and not for any periods subsequent to that. 3.25 In summary, it is submitted - The Corporation (was) entitled to issue its decision of 10 March 2010. The Corporation gave correct effect to the deemed decision; and The medical evidence (did) indeed indicate that the appellant's symptoms from at least June 2008 were not causally related to the covered injury, Case for Ms Shortland [33] The first proposition was that the effect of the deemed decision (whatever else might be said about its consequences) necessarily had to be that for the relevant to her needs period Ms Shortland was to receive home help and the assessment that in fact followed sufficiently identified and quantified that. [34] Counsel pointed to s 147 the effect of which is that a review decision binds the parties subject only to the qualification that the Corporation is not liable to provide entitlements as the result of a deemed review decision other than those able to be provided under the Act. [35] The commonly offered illustration of the reasoning behind that qualification is to say that a deemed decision referable to a previously dismissed by the The flaw in that proposition is that, for at least as long as it held good, the deemed decision evoked the Corporation's declinationt the issue is somewhat academic given the need, anyway, factually to resolve the extent of the home help entitlement. Corporation claim for an entitlement in the form of a Rolls Royce could not enable the claimant to head off to the dealer's showroom with an open ACC cheque. [36] The essence of the case for Ms Shortland was summarised in this way: ... the Corporation is bound by the deemed decision. It [must] implement home help, at least as per the assessment of Frances Coutts, as per the agreed time period. 30. It is not within (its) jurisdiction to subsequently decline same. 31, In the alternative, the Corporation has not displaced the onus that the MSRA bug was initially contracted as a result of the injury. There is no evidence to displace that position. 32. Finally, this is not an appeal against a discretion in regard to a home help assessment, the appeal is against the refusal of the Corporation to implement the home help assessment, rather than the nature of that assessment. Discussion [37] In the way I see this case discussion of it can be quite brief. [38] Had the Corporation had at hand at the time of its 10 March 2010 decision truly fresh and cogent evidence such as made plain that Ms Shortland's home help needs were not referable to the personal injury for which she had cover then it would have been perfectly entitled to take the s 65 route to 'remedy' the deemed decision difficulty. [39] However that is not how the evidence that there was and is unfolded, at least not as I see that to have occurred. There are differences in emphasis at some points in time as opposed to others but, when one looks at the evidence that was available at the time of home help declination 10 June 2009 and that which the Corporation had before it when it made the 10 March 2010 decision, the overall substance of the medical evidence was not significantly different. [40] At no point had the basis for relating the ulceration and so on to the February 2008 accident been dislodged for Dr Sugrue's medical evidence did not in any convincing respect change between September 2008 (when the whole matter would have been very fresh in his mind, he having just seen Ms Shortland) and when later (as exemplified by his letter to the Corporation of 23 April 2009) he talked about whether Ms Shortland had or did not have an underlying condition. [41] Moreover, at least as I read his advice, he says that the biopsy (the surgical type intervention of which I spoke much earlier) was done on the wrong spot. And that on its own surely left questions of underlying conditions, or allied matters of like potential significance, moot. [42] When, in the panel recommendation leading to the decision now in question, reference is made to Dr Sugrue having confirmed that the original wound had healed, that was for the panel to make a simplistic assertion: one not sufficiently born out, or supported, by the medical evidence so as to justify the conclusion that the effects of the February 2008 injury were spent, [43] I find much more persuasive (as regards the ulceration's relationship to the mail injury) the closer to the events that mattered and, for that matter, to the patient herself Home Health Care notes and their reference (in June 2008) to an "ongoing ulcer left lower leg ... since Feb 2008". [44] In my view there was no clear and unequivocal contrary evidence such as allowed the Corporation to determine that any need for home help had been spent within a couple of months or so of the 16 February 2008 event. [45] And it would surely be quite wrong that, on account a series of procedural misadventures compounded by delays none of which was created by Ms Shortland, she should now have a nought for her comfort result, Result [46] The appeal is accordingly allowed with the consequence that the deemed decision remains in effect. [47] As to what should happen in light of that outcome, the Court commends to the Corporation an approach consistent with that pragmatically proposed by Ms Shortland in para 8 of her affidavit evidence (see [27] above.) Costs [48] Ms Shortland is entitled to costs. If counsel cannot agree quantum they may revert to the Court. Roderick Joycedie District Court Judge ACR 813-10.doc (aw)