Nixon v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND (2014] NZACC 102 ACR 173/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN MARIE NIXON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 3 February 2014 Appearances: Dr Nixon in person I Mclachlan for the Corporation Judgment: 2 May 2014 JUDGMENT OF JUDGE RODERICK JOYCE QC Reason for appeal [1] Dr Nixon's appeal has its genesis in the Corporation's 17 December 2012 decision: (a) To decline a claim for cover for voice/throat injuries as a consequence of an accident resulting in a fracture of her right clavicle in August 2011; and (b) To decline an application for weekly compensation from 1 June 2012 on the basis that there was no injury related incapacity at that time and, anyway, that Dr Nixon was not an earner immediately before that date. [2] These determinations of the Corporation were upheld at review on 1 March 2013, this appeal then following. Background [3] I begin by recording that: Dr Nixon suffered her accident on 11 August 2011. She attended the Emergency Medicine Department of Auckland City Hospital where a primary diagnosis of clavicle fracture was made, and a claim for cover prepared and lodged. On 8 September 2011 a GP wrote that Dr Nixon was still slowly mobilising, had been unable to work and was quite unwell. An ARC18 was completed, backdated to the accident event. On 12 September 2011 the Corporation advised Dr Nixon that her injury was covered. A consequential, 20 September 2011, print claim file note of a discussion between the case manager and Dr Nixon included this: Early on she mostly struggled to eat due to the clavicle injury, and this affected her speech also but this has improved now ... The subject of speech came up more directly during a 27 September 2011 manager/client contact, of which this was recorded: Marie advised that she is very concerned that her voice has been affected by the accident. She advised that she has been very ill. The accident affected her breathing and at one point she had a problem with phlegm and vomited. Marie was unsure if she may have been unwell due to non injury factors ... (Emphasis added) A 30 September 2011 return to work progress report included: Marie reports that at the first stage of her accident she was physically unwell, with some difficulty breathing and speaking, as well as with chest congestion. She is pleased to be feeling better now, but attributes those symptoms to her injury ... (Emphasis added) [4] Turning back to the GP's clinical notes these included: 31 August 2011 - ... breathing/coughing difficult initially, can breathe with nil discomfort now ... 2 October 2011 -... CONT with aloe vera and feels that her voice is coming back ... 9 and 16 October 2011 - Neither entry makes any reference to breathing or voice difficulties. (Emphasis and italics added) [5] I come now to 27 May 2012 when Dr Nixon again attended Emergency Medicine at Auckland City Hospital. The record of that attendance included: RHD with blunt trauma and fracture of (R) proximal clavicle in August 2011 Routine ortho + physio follow up with good outcome. Describes ongoing discomfort from injury since but increasing pain in past fortnight + throbbing pain over fracture site overnight. . . . Also describes painful (R) stemocleidom mastoid + sore throat (states she had episode of dysphonia post original injury which self resolved.) (Emphasis added) However there is then the note: Voice 'croaky' - and the observation that Dr Nixon might benefit from ENT review if throat/neck issues persisted. [6] Next of relevance is a 26 June 2012 report to Dr Nixon's GP from Auckland City Hospital relating to an assessment of Dr Nixon that day by Dr Girish Vashista, who was described as an arthroplasty fellow. He wrote: Immediately after the injury she lost her voice and eventually after a month she recovered some croaky voice. She is still unable to speak properly. She also complains of difficulty in swallowing. This again appeared after the injury. ... Literally 'voice disorder', which may have one or more of many causes. I have asked for a CT scan today to rule out a posterior subluxation or dislocation and also to rule out a vascular or recurrent laryngeal nerve injury'. We will review her with the results. (Emphasis added) [7] Around this time a difference obviously arose between Dr Nixon and her GP about management of her case, one that came to the attention of the Deputy Health and Disability Commissioner. [8] I note nevertheless some observations of the managing partner of the GP practice in question as they were set out in a letter to Dr Nixon of 26 June 2012: With regard to your comments on our consultation regarding medical condition on the 01/06/2012 ... I spent quite some time discussing with you the possibility of bruising of a nerve causing your voice problems. I also discussed the slow nature of recovery of these types of injuries. We discussed how your voice had been recovering from August, going from very poor phonation to reasonable phonation at the time of consultation. I distinctly recall asking whether you would like an ENT referral, either in public or private, and given the slow but steady improvement of your condition we decided to adopt a wait and see approach with the proviso that if you requested a further referral this would be forthcoming. This was documented in my records at the end of that consultation. ... (Emphasis added) [9] Included in the bundle is a "time-line summary" obviously prepared by Dr Nixon. It makes reference to her voice or related problems as recalled by her in August 2011. It also refers to a 6 October 2011 consultation with another GP when, she says, she related that she had problems with her voice, was unable to cough, and had difficulty swallowing, breathing and eating. [10] On 5 July 2012 the Corporation wrote to Dr Nixon acknowledging an ACC 18 certificate completed by a GP on 5 July 2012 in terms: This medical certificate states that you are unfit to return to work for 30 days and the reason is related to your injury of 1 1" August 2011. ACC requires further information before any decision on entitlements can be made. Please provide ACC with objective clinical evidence from your See [1 1] - [12] below treatment providers confirming a direct causative link between your current incapacity and your accident of 1 1" August 201 1. ... [11] I next refer to the radiology report of a CT scan of the neck region dated 6 August 2012. The "indication" for this - in other words the reason for the reference - was described as: Previous fracture of sternal end of right clavicle with subsequent difficulty swallowing and croaky voice. Exclude recurrent laryngeal nerve injury. [12] It suffices then to record that the radiology opinion was; There are no findings to suggest a recurrent laryngeal nerve injury or other abnormality in the neck or upper mediastinum soft tissues. - and that a CT of the sternoclavicular joints carried out at the same time resulted in the recording of the impression: Fracture of the proximal right clavicle with posterior angulation. No dislocation of the right sternoclavicular joint. ... [13] Turning next to GP notes for 16 August 2012 I see, under the heading "subjective," entries that include: One year throat and shoulder pain + electric sensation in fingers Associated sometimes with difficulty swallowing every day Food and fluids does not get stuck Intermittent voice disturbance croaky every 2nd day ... [14] I also note these observations: Differential diagnoses - dual pathologies possible Cervical radiculopathy Neural sensitisation after injury Polymyalgia rheumatica with shoulder pain Intrinsic cause of swallowing difficulty Other. [15] I then see that Dr Nixon received acupuncture treatment for a period and that a 7 September 2012 record of that included mention of: Intermittent voice since accident ... - as well as a host of other symptoms. [16] Returning to matters radiological, around this time there was more extensive investigation of the cervical spine with the findings: Skull base, Cl and C2 alignment and intervals are normal. The C2/3 and C3/5 levels are normal. At the C4/5, C5/6 and C6/7 levels there is mild loss of disc height and mild end plate exostoses. There is moderate generalised reduction in bone density. The intervertebral foramina are normal. No cervical ribs. The impression recorded was of: Mild spondylosis change. No bone cause for symptoms identified. [17] I pass over further GP correspondence insofar as it relates to matters of contention between Dr Nixon and a GP or GPS, for the Court's focus must simply and only be on those matters bearing directly on the correctness or otherwise of the decisions that this appeal brings in question. [18] What is generally apparent is that, from time to time and with fluctuating levels of complaint and concern, Dr Nixon had complained of voice problems post- accident. And that was still the case on 10 October 2012, as is evidenced by an email she sent that day to her then case manager, Decision rationale' [19] I turn to the "decision rationale" document prepared within the Corporation on 17 October 2012, two months before its actual decisions. This relevantly recorded that: Based on the available medical information, there is insufficient evidence that the further requested period/s of incapacity for work are causally related to the injury for which the client has cover (fractured clavicle). The client had been cleared to resume duties at work by her GP ... in October 2011. The client had continued physiotherapy input, and these notes indicate improvements in activities that the client was undertaking. In addition, there is a lack of medical consultation notes to confirm that there were ongoing restrictions which would have prevented the client from working. The certifying GP has been requested to provide ACC clinical evidence of a direct causative link between the current (certified) incapacity and the event of 11/8/11. The information received does not provide evidence of this. In addition, the information indicates that the client was not employed at the time of the further certified incapacity, thus the client would not be considered an earner (and thus not entitled to weekly compensation payments). With regard to the throat/ voice symptoms that the client has experienced since the injury, there is insufficient medical evidence that these are a consequence of the covered injury under this claim. Imaging has confirmed that the fracture of the clavicle has fully healed, with a "slight posterior displacement". There is no subluxation or dislocation of the sterno-clavicular joint. A recent CT scan (neck) has ruled out "recurrent laryngeal nerve injury or other abnormality in the neck or upper mediastinum soft tissues" that would account for the client's symptoms. Based on this, an additional injury diagnosis regarding the client's voice/throat symptoms cannot be considered causally related to the event of 1 1/8/2011. The branch medical adviser has noted that if further information that supports the voice/swallowing issues to be injury related can be forwarded by the client this can be further considered. The client has requested that ACC fund an ENT specialist referral in relation to ongoing voice/throat issues. Based on the above decision that these symptoms cannot be causally related to this injury claim, ACC is unable to consider funding of this and is additionally declining the request. (Emphasis and italics added) Dr Vokes - Otolaryngologist (20] At this point an otolaryngologist (or, as we used to call them, an ENT) surgeon - one also specialising in the head and neck - came into the picture. He, Mr David Vokes, wrote to Dr Nixon's now GPS on 30 October 2012 in terms including the following: Examination: the voice quality today was mostly mildly dysphonic with mild roughness. Towards the end of the consultation there was a period when Marie's voice was perceptually normal ... ... there was deformity of the right sternoclavicular joint: the medial end of the clavicle was displaced anteriorly. This has also displaced the right sternocleidomastoid muscle more anteriorly. Flexible 3 Who had obviously enlisted his assistance. laryngoscopy with videostroboscopy showed that the right vocal fold was very slightly hypomobile compared to the left ... . Marie had moderate mediolateral and moderate anteroposterior compression when she phonated. The vocal folds themselves are unremarkable with no evidence of any lesions. Glottic closure was intact ... (Emphasis added) [21] Mr Vokes noted that a previous barium swallow had been normal and that the 24 July 2012 CT scans had shown no abnormalities, apart from the deformity affecting the right proximal clavicle. [22] Under the heading "assessment and plan" he then wrote: Clinically I am suspicious that Marie may have a very mild right vocal fold paresis (slight paralysis) at present. She may have had a right vocal fold paralysis secondary to either a vagal or recurrent laryngeal nerve injury secondary to her injury last year, but it is difficult to confirm this as it has been 14 months since her injury and she was not examined previously. She has evidence of muscle tension in the supraglottis at present which is probably a maladaptive compensatory phenomenon. (Emphasis added) He went on to recommend voice therapy. BMA [23] At this point I turn to the 31 November 2012 analysis of the case by Dr Peter Thakurdas, branch medical adviser. He had been asked to review the case in the light of information that now included the report from Mr Vokes. [24] Having, as I can see, gone carefully through the available material, he wrote: Overall, on balance, although it could be argued that the claimant has a "very mild right vocal cord parasthesis' (in late October 2012), its causation link to the original (1 1/08/2011) accident event/injury, although about 14 months earlier, appears very tenuous, largely because the documentation in the early post-injury phase did not mention the voice problem; and there was no posterior dislocation of the right sternoclavicular joint and clavicle fractures seem generally not to result in voice/throat complications. The 10/09/2012 cervical spine x-ray report strongly argues against any acute bony injury to the cervical spine. (Emphasis added) Mr Vokes again [25] It is then important to note the further, 13 February 2013, advice of Mr Vokes following upon his review of Dr Nixon that day carried out in conjunction with a voice therapist. He then wrote: Marie's major voice complaint is that her voice sounds different to before (rough) in that she has poor vocal stamina. She has returned to toastmasters and has found this very beneficial overall. Marie is also reporting occasional pains particularly in the right side of her neck. They are often associated with speaking. I wonder if these may be the result of her previously fractured clavicle. Examination The voice quality today was mildly dysphonic with mild roughness. I think a great deal of this is due to some posterior focus. Marie's voice did appear to improve the more we spoke to her today". Examination of the larynx reveals that the vocal folds were moving normally although the right does tend to be slightly hypomobile compared to the left as noted before. No lesions were noted. Stroboscopy revealed that the glottic closure was mostly complete; however occasionally there was a very small glottic chink. A mucosal out wave was seen bilaterally and was at times increased in amplitude on the right. There was only a small amount of muscle tension seen in the larynx today, and so overall appearances were improved today. Assessment and plan I think that Marie's predominant problem at present is more of a functional" dysphonia. I do not think that she has a significant right vocal fold paresis. She would benefit from voice therapy and we will organise this for her ... (Emphasis added) Discussion Cover for voice/throat problems [26] I refer first to the central issue which is that of cover. I begin with a rehearsal of some early and collectively significant examples of the already identified references to complaints of voice problems: Cf [20] above where it is noted that Mr Vokes had said much the same thing on 30 October 2012. i.e., one related simply to the body's workings. On 20 September 2011, by then five or so weeks after the accident, the case manager recorded Dr Nixon's view that the injury had affected her speech, but that had improved 'now'. A week later, on 27 September 2011, she expressed concern to the case manager that her voice had been 'affected' by the accident and, a day or two after that, a return to work progress report spoke of some difficulty speaking. But by 2 October 2011 she had told her GP that her voice was 'coming back' and it was not mentioned again at subsequent visits on 9 and 16 October 2011. [27] On 27 May 2012, which was nine or so months on from the accident, Auckland City Hospital Emergency Medicine notes included: States she had episode of dysphonia post original injury which self resolved. [28] The caveat lay in the then following note of a 'croaking' voice - and that obviously drove the decision to call for a CT scan. [29] The CT result not only excluded recurrent laryngeal nerve injury but also any other abnormality in the neck or upper mediastinum soft tissues. [30] The by then accumulated references to voice or voice related issues, some number of which I have already mentioned, were plainly at hand when the Corporation prepared its 'decision rationale' document of 17 October 2012 - see [19] above: this being the document that included the expression of opinion that: There is insufficient medical evidence that these (the symptoms variously complained of over time) are a consequence of the covered injury under this claim. (The italicised words are the Court's interpolation) 6 The 'middle' section of the chest cavity. [31] What was not then available was the opinion of the otolaryngologist, Mr Vokes. His subsequent and successive observations are identified at [20]-[22] and [25] above. [32] I count it of note that he wrote in respect of his first examination that: The voice quality today was mostly mildly dysphonic with mild roughness... Marie's voice did appear to improve the more we spoke to her today. (Emphasis added) [33] Although he mentioned that the wide vocal fold was very slightly hypomobile compared with the left, he did not suggest that there was any objective explanation for the problems reported by Dr Nixon. And on the crucial issue of causation he at that point simply said: She may have had a right vocal fold paralysis secondary to either a vagal or recurrent laryngeal nerve injury secondary to her injury last year, but it is difficult to confirm this as it has been 14 months since her injury and she was not examined previously. [34] But that - plainly very tentative, even perhaps speculative, observation - was tempered by his shortly following statement that, while it could be argued that she had a mild right vocal cord parasthesis (as of late October 2012) any link to the "(1 1/08/2011) accident event, injury ... appear(ed) very tenuous...". [35] Of course that was not the end of it for Mr Vokes offered his last word on the case when he wrote in February 2013. In doing that he reported that: The voice quality today was mildly dysphonic with mild roughness. I think a great deal of this is due to some posterior focus. Marie's voice did appear to improve the more we spoke to her today ... [36] He then mentioned that there was no sign of any joint positioning or fracture issue being a factor, and that in fact such did not generally result in voice/throat complications. [37] At this point I acknowledge afresh that from time to time post-accident, sometimes expressing varying levels of concern and at other times reporting (including relatively soon after the accident) an improvement, Dr Nixon has complained about difficulties with voice production. [38] But what is clear from the medical reports (and here I particularly include the evidence of the specialist in this area, Mr Vokes) is that despite a range of investigations (radiological and clinical) there is no clinically, physically, or radiologically apparent evidence of an injury having caused, or having significantly contributed to, her variously reported voice problems. [39] It must also be recognised as significant that Mr Vokes has said that on both occasions when he saw Dr Nixon it appeared to be the case that, as the interview progressed, her voice in fact improved, for that surely counts against there being an injury related physiological condition. [40] His most recent view was that her problem was more of a functional dysphonia - in other words one related to the workings of the body - than anything else. [41] I well appreciate that the medical approach is generally speaking a scientific one, a searching for clear proof, whereas the Court can look to the presumptive inference which a sequence of events inspires in a person with common sense'. [42] So I accept that judges should ground their assessment of causation on their view of what constitutes the normal course of events, based on the whole of the lay and medical evidence, and not be limited to expert witness evidence". [43] But I also recognise that a judge cannot draw what has been called a "robust" inference of causation unless medical science is prepared to say that there is a possible connection which, following an examination of all of the evidence, the judge may decide is probable'. 44] Although he initially raised the possibility of an accident-related explanation (albeit with very little sign of any confidence in that hypothesis) Mr Vokes, having Greenberg "The Cause of Disease and Illness: Medical Views and Uncertainties" in Freckelton and Mendelson 38 52 and see the cases cited at [65] of ACC v Ambros [2007] NZCA 304. 8 See Ambros at [67]. looked into the case further, has not supported that as even tenably being the case. And, very obviously, he was the best qualified to speak on that account. [45] When his views are considered, those alongside and in the light of the rest of the evidence, it becomes apparent that the probabilities do not favour at all the conclusion that there is a causal nexus between the voice problems variously complained of and any injury sustained in the accident. [46] Rather is the impression left that (understandably if it is the case) the stress of it all may have in some inexplicable way expressed itself in an intermittent voice problem. But even were that so, the problem would remain of the complete absence of any physically sourced explanation of even a merely tenable kind for that. [47] It turns out, then, that this is not a case where there is any evidential room, even adopting a generous approach, for the drawing of any inference favourable to Dr Nixon's cause. There is no legitimate basis for that. [48] In short, the Court is unable to recognise that, as a result of personal injury suffered in the accident, Dr Nixon is entitled to cover for her voice problems, however they might be described. Weekly Compensation [49] Looking at the weekly compensation issue afresh, it does appear to me, as it did to the reviewer, that there was no evidence that Dr Nixon was an "earner"! - was employed - when, or immediately before, she was said to be incapacitated in June 2012. [50] But, and this could be of importance, I also note (because Ms Mclachlan so reported) that Dr Nixon had sought a review of an 11 November 2013 decision relating to weekly compensation between 24 October 201 1 and 31 May 2012. Ambros at [68] and [70]. 10 As defined in [51] Thus, depending upon the outcome of that, or any consequent appeal, it just might prove necessary to revisit June 2012 in s 65 or related terms. [52] I would add here that on the materials before me (and although it was not an issue for me to determine) there are, on the face of it, signs of it perhaps being the case that undue haste on the Corporation's part in October 201 1 led to but lip service being paid to s 102 of the Act. Result [53] The appeal on the voice/throat issue is dismissed on the merits. [54] But, given the reservations expressed at [50]-[52] above, the appeal relating to incapacity in June 2012 is dismissed pro forma rather than in merits-determined terms. [55] I take that, the last mentioned, course just in case Dr Nixon's apparently continuing efforts in relation to the 11 November 2013 decision bear fruit for her. For were that to become the case, the June 2012 situation might need to be examined in a different light". Roderick Joyce of District Court Judge 11 An observation (and this is a cautionary note) based only on the very limited information the Court has of what exactly the 1 1 November 2013 decision involves.