Wairau v Accident Compensation Corporation

IN THE DISTRICT COURT AT DUNEDIN [2016] NZACC 178 ACR 442/14 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN NICHOLAS WAIRAU Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 19 February 2016 Appearances: L Soper as advocate for the appellant H A Evans for the respondent Judgment: 29 June 2016 RESERVED JUDGMENT OF JUDGE L G POWELL [1] The issue in this appeal is whether the appellant, Nicholas Wairau, is entitled to cover for an indirect inguinal hernia, which he believes occurred on 17 October 2013 when he felt a "twinge" at work while lifting a heavy meat tray. [2] After initially considering and declining the application for cover as a work related gradual process injury, by decision dated 7 July 2014 the Corporation declined cover on the basis that Mr Wairau's hernia condition "did not result from a traumatic rupture of the hernia wall", noting in particular that "the lack of pain [experienced by Mr Wairau] at the time of the event is not consistent with a traumatic hernia". [3] The sole question to be determined is whether the Corporation's decision was correct. Factual Background [4] The first record of any form of injury occurred when Mr Wairau sought treatment for a cough on 14 November 2013. On that day his general practitioner, Dr Wali Kamali, noted that as well as having had a cough for some two weeks Mr Wairau was also suffering from pain in the right inguinal area when he coughed and diagnosed a right inguinal hernia. [5] There was no reference to how or when the hernia arose in Dr Kamali's initial notes, however the next day, 15 November 2013, Mr Wairau's employer filed an accident notification form advising that Mr Wairau had felt a "twinge in the groin area" on 17 October 2013 while "lifting full tray of frozen meat". (6] As a result Dr Kamali proceeded to file an ACC45 claim form on 17 November 2013. The Corporation sought further details from Mr Wairau. The notes of a telephone conversation between Mr Wairau and a case manager on 20 November 2013 recorded: Customer's version of events: How did your accident happen? Was there a specific accident or other event which you believe caused the hernia condition? About three weeks ago - lifting up some tubs that weighed about 30 Kgs (does this about once a week) What was the date that the accident or other event happened? 17/10/2013 Did the accident happen at work? If yes, did you make an official report of the accident. Happened at work, told boss about it who told him to make incident report, but he didn't make a written report. Did you suffer any pain at the time of the accident? Where was this pain located? On a scale of one to ten (where one is minor pain and ten is severe pain) how bad was the pain? No pain at the time of the accident, the pain started the next day in the right groin. The pain at this time was about 2/10, just annoying, not that bad - each week it has gotten worse. He didn't know what it was and thought it was his prostate. Have you experienced a similar level of pain in the past? If yes, what was the cause of that pain: Has had a broken foot, which was much worse and extremely painful. In the 12 months before you suffered your accident, do you recall suffering pain in this area? No When did you first notice the hernia (e.g. the lump in the groin)? - please tick one. Within one week of the accident [7] Dr Kamali subsequently completed a Treatment Provider - Hernia Questionnaire in which he noted Mr Wairau's accident on 17 October 2013 as being: Gradual process - lifting heavy WTS for work sometimes more than 40 kg. [8] Further down the form Dr Kamali went on to note that while he did not think Mr Wairau's hernia resulted from a traumatic event, the incident on 17 October 2013 "was enough to cause tearing of the abdominal wall ... sufficient to present as an acute traumatic hernia". [9] Dr Kamali's use of the term gradual process led to the claim being considered as a work related gradual process injury. As part of the investigation that followed Mr Wairau's employer indicated that it was unsure if any injury was the result of his work because "we were never informed until a month later". [10] The Corporation eventually declined the claim for cover as a work related gradual process injury on 17 December 2013. Although initially Mr Wairau sought a review, the application for review was subsequently withdrawn, and the focus turned to whether Mr Wairau's hernia was a direct result of a lifting incident that took place on 17 October 2013. In support of the claim Dr Roger Deacon, a general practitioner colleague of Dr Kamali, advised: Re the R inguinal hernia it is still likely that the R inguinal hernia is traumatic in origin and on the balance of probabilities it is likely to have been caused by work process as reported Note was first seen on 14/11/2013 Note Nikky was not sure at the onset what was going on as of the pain onset at 17/10/13. We see perhaps 1/100 of any pain episodes that any individual experiences at most ie self care and self coping/caring mechanisms are fairly normal/universal [11] Despite that advice the Corporation, relying on general information regarding hernias provided by Branch Medical Advisors, Dr Graham Martin and Dr John Heyden, issued its decision of 7 July 2014, and declined Mr Wairau's claim for cover. [12] Despite the decision within a short time Mr Wairau was successful in having surgery to repair his hernia under the public system. Mr Wairau's surgeon, Paul Samson reported as follows: This 42 year old ex-smoker described an incident at work on 17 October 2013 where he was lifting a 27 kilogram tub of frozen meat and then had subsequent pain in the right groin. There was a subsequent development of a lump in the right groin. There was a subsequent development of a lump in the right groin. Note is made of no prior abdominal pain nor contra-lateral hernia diagnosis. He delayed a GP review given work stresses and threats of financial loss. This gentleman was later referred to surgery in February 2014 and was seen in a Colleagues surgical outpatient clinic in June 2014. To expedite his surgery his case was transferred to my care and I performed open mesh repair of the right inguinal hernia on 14 July 2014. Intra-operatively a small indirect hernia was found with no marked scarring and fibrosis suggestive of this having been a longstanding or congenital hernia. This gentleman's history of presentation with inguinal hernia and the operative findings are most in keeping with a traumatic hernia. whilst gradual weakening of the abdominal wall can occur over a long time frame in a job requiring heavy lifting, it appears in this instance that a specific event occurred at work resulting in pain and subsequent appearance of a hernia thus supporting a traumatic event. [13] Upon receipt of Mr Samson's report the available evidence was reviewed by Dr Alan Walker, on behalf of the Corporation. In a lengthy report in which he reviewed a considerable quantity of hernia related literature Dr Walker concluded that Mr Wairau's presentation was "entirely consistent with a hernia which has developed as a disease condition". Dr Walker agreed with Mr Samson: I don't think anyone is suggesting that this is a congenital hernia (although the hernia has developed in an area of congenital weakness within the abdominal wall) or a long-standing hernia. This is an inguinal hernia which has developed as a disease condition associated with weakening of the connective tissue around the client's inguinal canal and become symptomatic associated with coughing during a respiratory tract infection. [14] Dr Walker summarised his views as follows: Inguinal herniation is a common disease condition with a lifetime incidence in males exceeding 25%. The natural history of inguinal herniation is for symptoms (pain related to activities which increase intra-abdominal pressure and thus in distension within the hernial sac) to increase over time. Traumatic inguinal herniation is extremely rare. The Smith criteria which were the basis for the ACC hernia guidelines were only developed to apply to a tiny minority of inguinal hernias in which there was some subjective suggestion of traumatic causation. This client fails the Smith criteria. Medical literature subsequent to the Smith paper is not supportive of a traumatic aetiology for inguinal herniation. [15] Mr Wairau's application for review was heard by Reviewer Dale Todd and dismissed on 26 November 2014. Reviewing the evidence Reviewer Todd noted that: ... to his credit Mr Wairau stated at the hearing that the initial feeling was that of a twinge and not of pain. This would seem to be entirely in keeping with the indirect nature of the hernia which did not require a rupture of either the abdominal wall or the wall of the inguinal canal. [16] Reviewer Todd then concluded after considering the evidence that there was: ... nothing more than a temporal connection between the lifting event and the twinge and subsequent development of a lump and pain with coughing. The indirect hernia was not caused by trauma or by any lifting event. [17] Mr Wairau appealed the decision and through his advocate Ms Soper obtained a report from Grant Coulter, a general surgeon and the clinical director of the Department of General Surgery at Christchurch Hospital. Mr Coulter's report was necessarily general as he noted "I was provided with no more details of the case nor any history of how the hernia had occurred etc". Mr Coulter then noted: In general inguinal hernias can either be congenital which usually presents in childhood, traumatic following some form of injury, general deterioration which can occur with age or a failure of previous repairs or defects related to previous surgery. These are called incisional hernias. The argument seems to be in this the literature is difficult to interpret and I don't believe there is any hard evidence either way. Overall if a patient presents clinically we rely on their history as to whether the event was traumatic. It is impossible to accurately clinically tell every time whether a hernia is direct or indirect. Ultrasound may be of benefit but again this is not infallible. I believe traumatic events can cause either direct or indirect hernias. It would be very wrong for ACC to only accept direct hernias as we cannot tell them very accurately clinically. If patients have a good history, get an ACC claim accepted, have surgery and then declined on the basis on the type of hernia that is found this would cause incredible stress and financial hardship to many patients to be declined after surgery. From my own experience of repairing thousands of hernias both with the laparoscopic and open technique I believe a traumatic event can cause either a direct or an indirect hernia. The Case for Mr Wairau [18] Ms Soper submitted that Mr Wairau "meets all criteria for cover of a personal injury by accident". In particular Ms Soper submitted: 3. The appellant says that he met the majority of the Hernia Guidelines agreed between ACC and the NZ Association of General Surgeons. There was a single strenuous event on 17 October 2013; a reported incident of muscle strain; groin pain; medical diagnosis within 30 days; and no previous inguinal hernia history. 4. The appellant says that there is ample medical evidence from the original GP Locum; from his permanent GP; from Mr Paul Samson, the Operating Surgeon; and from Mr Grant Coulter on behalf of the New Zealand Association of General Surgeons, to substantiate that on the balance of probabilities his right inguinal hernia was caused by a traumatic injury on 17 October 2013 and should be covered by ACC. [19] In addition it was Ms Soper's submission that the reviewer should not have relied on Hoggard v Accident Compensation Corporation,' nor Dr Walker's opinion. Discussion and Analysis [20] It accepted by both parties that the central issue in this case is causation - what caused Mr Wairau's right inguinal hernia. Section 20 of the Accident Compensation Act 2001 requires that unless the injury was caused by an accident it cannot be [2014] NZACC 42 covered by the respondent. Likewise pursuant to s 25 notwithstanding an injury has been suffered it is not an indication or presumption that it was caused by an accident. [21] In assessing the cause of the injury I am guided by the principles set out by the Court of Appeal in Accident Compensation Corporation v Ambros' [22] As Mr Coulter observed, given the difficulty in determining clinically whether a hernia is traumatic in origin or not it is necessary to look carefully at the history as to whether the hernia was caused by trauma. The "Smith guidelines" adopted in a slightly modified form by the Corporation and the NZ Association of General Surgeons ("the ACC Hernia Guidelines") and which Ms Soper submitted had been used by Mr Wairau in this case in fact provide a framework for assessing this history in order to evaluate whether the hernia was caused by trauma where: (a) A single strenuous event is claimed to have caused the hernia; (b) If the accident occurred in the workplace, an incident of muscle strain is officially reported; (c) Significant groin pain was present at the time of the accident; (d) A medical practitioner diagnoses a traumatic inguinal hernia within 30 days of the accident but preferably within 10 days (e) There is no history suggestive of a non-traumatic (i.e. gradual onset) or congenital inguinal hernia. [23] In considering these principles against the facts in this case, it is clear that there is little evidence to support Mr Wairau's claim for cover. First, Mr Coulter himself was not in a position to comment on the specific circumstances of Mr Wairau's hernia. Likewise, Mr Samson, while having operated on Mr Wairau was able to ascertain the hernia did not appear to have been longstanding or congenital in origin (conclusions that were not disputed by Dr Walker), otherwise appeared to simply be relying upon the temporal connection between the lifting and the onset of pain/subsequent appearance of the hernia, in order to support a traumatic origin. [24] Instead when the history of the onset of Mr Wairau's hernia is looked at closely it is clear that the temporal connection is in fact weak and Mr Wairau, contrary to [2008] 1 NZLR 340 in particular paragraphs [66] - [70]. Ms Soper's submission, is not able to show that all of the ACC Hernia guidelines have been fulfilled. The lifting undertaken by Mr Wairau on 17 October 2013 was clearly a normal part of his work and does not seem to have given rise to anything that could be considered a "single strenuous event" for the purposes of the ACC Hernia Guidelines. Instead, as set out above at [6] and as Reviewer Todd noted, having heard Mr Wairau giving evidence before her, at most Mr Wairau experienced a "twinge"on 17 October 2013 which could in no way be categorised as having been 'significant groin pain at the time of the accident". Instead the evidence suggests the pain built up over time with medical attention ultimately sought only just within the 30 days specified by the ACC Hernia Guidelines, which is indicative that even then the pain was not acute. Contrary to those guidelines the history provided by Mr Wairau was in fact suggestive of a non traumatic/gradual onset given Dr Kamali's comments and the subsequent investigation of the claim as a work related gradual process injury. Finally it was not until after a hernia had been diagnosed that any form of incident was formally reported by Mr Wairau's then employer as having occurred at his work place, with the employer somewhat sceptical that any incident had in fact taken place. [25] Although not focused on the particular circumstances of Mr Wairau's presenting history Dr Walker's report, and indeed the other material on hernia provided by Dr Martin and Dr Heyden, also make it clear that the type of hernia suffered by Mr Wairau can and does arise spontaneously without any evidence of trauma. [26] Taken together I conclude that the evidence is in fact quite clear that Mr Wairau's hernia was not traumatic and that Reviewer Todd appropriately weighed the evidence before her before dismissing the review. As a result the appeal must be dismissed. Decision [27] The appeal is dismissed. There is no issue as to costs. Judge L G Powell District Court Judge Solicitors: Young Hunter, Christchurch, for respondent ACR 442-12-Wairau