Pascoe v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 25 3 /2007 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN PATRICIA ANNE PASCOE Appellant (Appeal Nos. Al 368/06 ) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED DECISION OF JUDGE J CADENHEAD ON THE PAPERS THE COURSE OF THE PROCEEDINGS []] I delivered a decision in this case on 5 April 2006. The issue that confronted me was whether the reviewer was correct in upholding the respondent's decision, dated 2 May 2005, advising that the appellant did not qualify for an independence allowance as she did not meet the statutory 10% level of impairment. I have set out the context of my decision in paragraphs 24 to 27. [2] As a result of my decision the appellant in a letter dated 5 May 2006 applied for cover for a vaginal prolapse caused by an accident on 9 May 1998. [3] On 12 May 2006 the respondent declined the claim for vaginal prolapse. The issue went to a review hearing and on 25 August 2006 the reviewer confirmed the decision of the respondent and declined the appellant's claim for cover for her I:JUDICIAL\CADENHN\ACC\Reserved decision Pascoe 368 06 vaginal prolapse injury. There was an appeal against this review decision and it has now come before me. [4] In her letter of 5 May 2006, the appellant advised that she was not able to obtain further medical evidence confirming the prolapse. She said that Dr Yared giving more details of the lower bowel repairs could not be expected to recall a specific operation out of all the ones that he had performed over six years. Further, Dr Lesley Smith left without giving any of patients prior notice. She relies upon Dr Yared's letter dated 30 April 1999 of the fact that Dr Smith had been adamant that at all times that no prolapse was evident before the accident. [5] Finally, both parties agreed that I decide this appeal on the papers. THE ISSUE [6] The issue before me is whether or not the appellant can show, on a balance of probabilities, that the accident occurring on 9 May 1998 caused her to have a prolapse of her vagina. THE MEDICAL EVIDENCE [7] Dr Smith originally wrote on 21 June 1998 stating the injuries sustained by the appellant. In that letter the doctor said that the appellant noted that she still had pain and tenderness around her chest and ribs, especially the lower right ribs anteriorly. There had been a gradual slow improvement. The appellant was anxious and emotional following the accident. [8] Dr Smith again wrote on 19 September 2004 advising that the appellant had had a prolapse repair the year before. [9] She said that the prolapse had developed after a motor vehicle accident. [10] Regular pap smears prior to the accident had been normal and there was no evidence of any prolapse. [11] Dr Smith was of the view that her prolapse could be caused by childbirth, intra abdominal pressure (e.g. straining) and that it could occur especially post- menopausal. 2 [12] Dr Len Yared, gynaecologist, in a letter dated 30 April 1999 reporting that he had seen the appellant in January 1999 in relation to the vaginal prolapse, he noted her history as having: "Had marked bruising to her abdomen and chest with a lot of pain across the pelvis where she was restrained by the seatbelt. It is, I believe, possible that a motor vehicle accident with sudden compression of the upper abdomen and certainly the pelvis due to the presence of the seat belt that excessive compressive force could be directed towards the pelvic floor and could possibly result in a prolapse occurring. In the accident one would not have had time to actually brace oneself and contract the pelvic floor muscle and protect against a sudden rise in intra-abdominal pressure. " [13] The respondent tried to obtain information from the operating surgeon, Dr Maher, but was unsuccessful. THE REVIEW HEARING [14] On 25 August 2006, a review decision dismissed the appellant's review application stating as follows: "Analysis Mrs Pascoe gave evidence at the review hearing. I found her to be open and honest. I accept that Mr and Mrs Pascoe are still suffering because of their unfortunate accident in New Zealand. Despite all the confusion surrounding her claim, I must say that I found Mrs Pascoe to be helpful and pleasant. In this application Mrs Pacoe has the onus of proof. This means she must prove her claim on the balance of probabilities. There is no dispute that Mrs Pascoe had a vaginal prolapse. The issue is simply causation. Has Mrs Pascoe proved, on the balance of probabilities, that the car accident in New Zealand caused that injury? I accept that Mrs Pascoe genuinely believes that the accident caused her prolapse. However, in determining causation, it is usual to rely on the medical evidence. I have been guided by the comments of Judge Cadenhead in Pascoe (82/2206). He said it was necessary for Mrs Pascoe to show that the accident "probably" caused her prolapse. He said it was not enough that a causal link was "a mere possibility". Judge Cadenhead said the medical evidence of Dr Yared would have to be stronger on this issue. Judge Cadenhead was referring to the letter from Dr Yared dated 30 April 1999. Dr Yared told Mrs Pascoe recently that there was nothing now that he could add to his 1999 comments. Dr Yared based his opinion on his understanding that Mrs Pascoe had marked bruising to her abdomen and chest, with a lot of pain across the pelvis. Mrs Pascoe's own evidence is that no bruising was apparent. The contemporaneous hospital notes do not give any indication of an abdominal or pelvic injury. Dr Smith is the only other treating medical practitioner who has provided comment on Mrs Pascoe's vaginal prolapse. Dr Smith confirmed that Mrs Pascoe had regular pap smears and that there was no evidence of a prolapse before the accident. However, Dr Smith did not say that in her opinion the car accident caused Mrs Pascoe's prolapse. She said only that the prolapse "developed after" the accident. That is evidence of some temporal link but not a causal link. Mrs Pascoe first became aware of the prolapse "a couple of months" after the accident. Conclusion I sympathise with Mrs Pascoe. I see no reason to doubt her evidence at the hearing about the emotional consequences of the accident that haunt her still. I accept also that she genuinely believes there is a causal link between the accident and her vaginal prolapes. Unfortunately, however, I find that Mrs Pascoe has not proven her claim to the required standard. The medical evidence does not provide sufficient support for her claim. I have not been persuaded on the balance of probabilities that the accident caused her prolapse. For the reasons set out above, I must confirm ACC's decision to decline Mrs Pascoe's claim for cover for her vaginal prolapse injury. I dismiss the application for review." 4 [15] I am of the view that the reviewer has commendably set out and analysed the countervailing considerations in this case. On the one hand there is the temporal issue, but balanced against that there is the lack of strong medical evidence showing that the accident was the probable cause of the appellant's injury. THE APPELLANT'S SUBMISSIONS [16] The appellant submits that initial concern arising from the accident related to her chest injuries. It was only later that the prolapsed vaginal injury came into focus. She says that when Dr Yared wrote his letter the subsequent acceptance from the respondent led her to believe that she had an accepted claim. [17] She submits that the elapse of time since the accident has not enabled her to obtain more medical reports. Her submission is that Dr Yared's opinion at the time was that her injuries were consistent with a seatbelt injury and that combined with her medical history, the fact that there was no sign of a prolapse before the accident, was to the inference that the vaginal prolapse was caused by the accident. 18] The appellant is at a loss to know how the hospital notes show that there were no internal injuries. She was in a cubicle where her blood pressure and ECG were monitored and a chest x-ray was taken. However, no ultrasound or CT scanning was done, 19] The appellant feels an injustice has been done to her because of the respondent's inability to inform her of her right to lodge an appeal for a prolapse injury consequent upon the letter of Dr Yared dated 30 April 1999. She said her hopes had been built up when she was granted a 12% impairment percentage and could not understand how that could have been withdrawn. She also alleges that there has not been enough consistency with the personnel dealing with her case. She said that two months before the accident she had no problems of a prolapse nature. In a split second before the impact she was unable to brace herself. The appellant said that it had been an arduous task for her to proceed the case without the benefit of legal counsel. [20] Her strong submission is that the prolapse was the result of the car accident and having not been asked to claim prolapse injury in 2000 has jeopardised her case. DECISION [21] The medical evidence does not mention the appellant's vaginal prolapse until some time after the accident. The fact of the appellant's vaginal prolapse is not in dispute, but the issue is whether the medical evidence is strong enough to point to the motor vehicle accident on 9 May 1998 as the cause of her vaginal prolapse. [22] The Accident & Emergency notes from the Christchurch Hospital show that the appellant "MVA/painful chest". The clinical notes state: MVA, passenger wearing seat belt - car stationary, hit head on by ongoing car, walked from scene. MC/6 slight chest pain on deep resp only. Able to cough. No head injury. No neck/abdo pain. " [23] Dr Yared, gynaecologist, stated that it was possible that the motor vehicle accident had resulted in the prolapse occurring. [24] Dr Smith, similarly, was of the view that the prolapse could be caused by childbirth, raised intra-abdominal pressure (e.g. straining) and occurs especially post-menopausally. It is unfortunate that I have not been able to get any information from Dr Maher, the surgeon who repaired the injury. [25] I accept that the 12% disability certified by Dr Hancock arose out of a misunderstanding of interpretation of Dr Yared's medical report. [26] The issues that support the appellant's claim are the temporal connection along with the report of Dr Yared, gynaecologist. [27] Dr Yared only goes so far as to say that it is possible that the accident was the cause of the prolapse. I signalled to the appellant in my earlier decision that stronger medical evidence would be required. (28] Dr Yared based his opinion on the understanding that the appellant had marked bruising to her abdomen and chest, with a lot of pain across the pelvis. The appellant's own evidence was that no bruising was apparent. The Accident and Emergency Hospital notes following the accident do not give any indication of any abdominal or pelvic injury. 6 [29] The appellant visited her general practitioner twenty days after the accident on 29 May 1998. Dr Smith reported that she had no skin bruising and certainly no abdominal or pelvic problems when noted by her. [30] I would have thought that the appellant would have endeavoured to have followed up in Australia the opinions of Dr Yared, Dr Maher and possibly Dr Smith. The onus is upon her to prove the causative link on the balance of probabilities. I find that she has not sufficient evidence to sustain the inference that the accident caused her vaginal prolapse. [31] For the reasons that I have given I dismiss this appeal. [32] There will be no order as to costs. DATED at AUCKLAND this. . .(4. .....day of. November 1............2007 J Cadenhead District Court Judge 7