Hughes v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 349/2004 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN PATRICIA GEOKHWA HUGHES of Blenheim Appellant (Appeal No. AI 608/03) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at NELSON on 26 October 2004 APPEARANCES/COUNSEL M. Hardy-Jones for appellant A. Barnett for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue in this case is whether the taking of a drug, Amitriptyline has caused gross dental decay in respect to the mouth of the appellant. This drug had https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/349- 2004.doc AE been prescribed for the appellant arising from treatment for Fibromyalgia, having a date 1 March 1998. [2] The issue is whether there is a proven causal association between Mrs Hughes’ dental decay and treatment she received for an injury in respect of which she has cover. The Background of Facts [3] Mrs Hughes has cover for Fibromyalgia as a gradual process injury arising out of her employment with Sandfords South Island Ltd. In treating the Fibromyalgia, Mrs Hughes has been taking Amitriptyline once a night from 21 April 1998. (Refer Dr Gardner, 27 December 2002). [4] It is accepted that Amitriptyline may lead to a dry mouth and may contribute to dental decay. [5] Mrs Hughes applied for funding for the treatment of her teeth in 2002. Following enquiries by the Corporation, and attempts to obtain complete dental records, it issued a decision on 3 July 2003, declining the request on the basis that it was unable to obtain evidence, in particular dental records, that would enable it to make a considered decision as to causation. [6] This decision was upheld in the review decision dated 15 October 2003. In essence, the Review Officer considered that there was insufficient evidence to establish Mrs Hughes’ claim. It is conceded that cover extends to injury caused by treatment of an already covered injury. [7] The use of Amitriptyline was to treat the covered Fibromyalgia. [8] If the use of Amitriptyline was a substantial cause of Mrs Hughes’ dental condition for which she requires treatment, then she has a claim for dental treatment costs. If the teeth condition is wholly or substantially caused by disease unrelated to treatment with Amitriptyline, then there is no liability on the Corporation to meet the dental treatment costs. [9] The Corporation have sought complete dental records. The appellant has submitted that these medical records “do not exist (paragraph 14 appellant’s 349-2004 2 synopsis). The suggestion from the appellant appears to be that she has no previous dental history recorded in New Zealand. The claim file shows that the Corporation actively sought Mrs Hughes’ dental records from the Blenheim surgery of B.T. Holmes. Ultimately, the Corporation (Catalyst) received on 9 January 2003, dental records for the period 8 February 1999 to 11 October 2000. These records disclose four extractions over the period. [10] On 13 January 2003, Catalyst wrote to Mrs Hughes, having received the dental records for the period February 1999 to October 2000. The letter records that the dental surgery advised Catalyst that Mrs Hughes had collected her previous dental records and encloses the records Catalyst has received to date and concludes: “If you wish Catalyst to continue with your requests you will need to forward a copy of the dental notes that you have received. If you do not forward this information, we will be unable to give fair consideration to your request, as we will not have the complete history.” [11] No further dental records have been supplied to Catalyst even although the evidence suggests that Mrs Hughes’ collected previous dental records from her dentist some time prior to 9 January 2003. In particular, the appellant has been in New Zealand from 1982 and there are no dental records dating from this period. [12] There is limited other dental/medical evidence available. [13] Dr Koorey, Dental Surgeon, writes on 20 June 2002: “She [Mrs Hughes] has widespread advanced periodontal disease and widespread decay, mostly on the root surfaces. She had four teeth which had grade 1 mobility (42, 32, 17, 27) and already has 15 teeth extracted and wears upper and lower plastic partial dentures. She has a relatively dry mouth which I would imagine is secondary to her use of antidepressant medication and this in turn will have increased her amount of decay. I discussed with Pat the likelihood that she will be completely dentureless within a few years time due to loss of teeth from pain from advancing caries and more importantly the advancing periodontal disease…”. [14] A letter from Dr Rosalind Skinner, Periodontist and Dental Surgeon, 14/12/02, to Catalyst records: “Mrs Hughes has a compromised dentition complicated by diabetes and a medication induced dry mouth”. 349-2004 3 The Submissions of the Respondent [15] It appears to be the suggestion of the appellant that there are no dental records in New Zealand as she is an immigrant from Singapore, but the evidence at review seems to suggest that Mrs Hughes has been in New Zealand since 1982 and the file certainly shows that she was in New Zealand from 1995 – at which time she commenced employment with Sandfords. [16] It is submitted that there are dental records (almost certainly in New Zealand) which have not been disclosed. The dental surgery in Blenheim reported to Catalyst that Mrs Hughes had removed some dental records. Further, Dr Koorey says that in June 2002 there had previously been 15 teeth extracted, whereas the limited records provided to Catalyst from February 1999 to October 2000 would indicate four extractions only. [17] The medical evidence suggests then that Mrs Hughes has advanced periodontal disease, which is itself not caused by the use of Amitriptyline. Likewise, she has a complicating feature in diabetes which is unrelated to the use of Amitriptyline. The respondent submits that it has every reason to conclude that prima facie, Mrs Hughes need for dental treatment arises wholly or substantially from a disease unrelated to her use of Amitriptyline. [18] Mrs Hughes has an obligation under the Act to provide relevant medical information required by the Corporation, and she has on her an onus of proving the basis for her entitlement to claimed compensation. The onus upon her has not been discharged. The Submissions of the Appellant [19] The appellant submits that there was no evidence to the effect that the injury was caused by disease or the ageing process. It is submitted that the appellant does not have to prove a negative: that is that the condition of her teeth was not caused by disease or infection or the ageing process. The submission of the appellant is that she does not have the medical records and that they do not exist. [20] It is submitted that in this case the onus has been discharged by: 349-2004 4 [a] The oral evidence given by the claimant in person, that she had good dental health prior to the treatment and that this evidence was not challenged by the respondent. [b] She provided photographic evidence showing healthy teeth. [c] The medical evidence shows that Amitriptyline was prescribed and administered. [d] The drug was administered over a long period of time. [e] It was conceded that the side effect of the drug was that it could cause or contribute to dental decay. [f] The dental decay of the appellant was severe. [g] A medical report confirming dental decay was a side effect and that the doctor “imagines dry mouth has increased her tooth decay.” Legal Principles [21] Both parties agreed that I should deal with this case under the provisions of the 1998 legislation. Section 29 of that Act provides: “29 “Personal injury” (1) Personal injury means— (a) The death of an insured; or (b) Physical injuries suffered by an insured, including, for example, a strain or a sprain; or (c) Mental injury suffered by an insured because of physical injuries suffered by the insured; or (d) Mental injury suffered by an insured in the circumstances described in section 40. (2) Personal injury does not include personal injury caused wholly or substantially by a gradual process, disease, or infection unless it is personal injury of a kind described in section 39(2)(d), (e), (f), or (g). (3) Personal injury does not include a cardio-vascular or cerebro-vascular episode unless it is personal injury of a kind described in section 39(2)(h) or (i). 349-2004 5 (4) Personal injury does not include— (a) Personal injury caused wholly or substantially by the ageing process; or (b) Personal injury to teeth caused by the natural use of those teeth.” [22] In order to qualify for cover a claimant must show that she comes within the provisions of section 29 and prove an entitlement to cover. The onus of proof falls upon her to show on the balance of probabilities that she has a personal injury caused by the covered injury (Fowlie 4/10/00, Hansen J, High Court Wellington AP 50/00; Pitkethley 311/03). Once this onus has been met the claimant must then establish on the balance of probabilities that her condition is not caused “wholly or substantially” by a pre-existing condition, such as non-related gradual process or disease, or the ageing process. (Garton 151/04). [23] In this case the onus is upon the claimant to show that her disability is not caused “wholly or substantially’ by disease or the ageing process. The Review Decision [24] The review decision carefully analysed the evidence and concluded that the appellant could not establish her tooth decay was because of personal injury and the issue of how much it was related to the drug, would be guess work. The reviewer found that the appellant had not established the onus of proof of establishing that a personal injury had been made out. There were no dental records detailing the state of the appellant’s teeth prior to her taking the drug Amitriptyline. The reviewer said that the appellant’s condition might have been caused by everyday tooth decay or it could have been caused by her treatment or both. The only medical evidence was that of Andrea Koorey, who stated that she imagines dry mouth has increased her tooth decay. There is no medical comment on what has caused the widespread decay and periodental disease. The reviewer held that at least some of the decay had been caused by the drug, but he could not say how much. Decision [25] I agree with the reviewer that here there is insufficient evidence to satisfy the onus of proof upon the appellant to show on a balance of probabilities that her tooth decay has been substantially caused by the drug Amitiptyline. In a recent High Court 349-2004 6 decision Cochrane (CIV 2003–485-2099 Wellington 2 June 2004), Justice Miller said, while confronting a causation issue under the 1982 Act. “The question ought to have been whether he could show that his incapacity was caused in some degree by the injury for which he was granted cover. Had he been able to do so, it could not have been said that his condition was caused exclusively by factors such as age or disease. An appellant may not establish causation simply by showing that the injury triggered an underlying condition which was already vulnerable ('the egg shell skull principle') or that the injury accelerated a condition that would have been suffered anyway ('the acceleration principle'); McDonald [2002] NZAR 970. The question is simply whether the necessary causal nexus continues to exist between the injury and the condition…In some cases an injury in a person who suffers from degeneration will produce symptoms in circumstances where that person may otherwise have remained asymptomatic for ever. In such a case it is the injury, rather than the degeneration, that is the cause of the incapacity. The onus is on the appellant to show the necessary degree of causation on the balance of probabilities, but the court has cautioned against placing too much emphasis on the onus; Wakenshaw [2003] NZAR 590. The question is whether the evidence as a whole justifies a conclusion that the necessary nexus between injury and incapacity exists. This point is important in a case such as the present, because evidence shows that it is in the nature of back injuries of this kind that medical evidence frequently cannot establish clear cause and effect. For that reason, I consider that the District Court was wrong to dismiss the appellant's claim by pointing to the onus of proof and the inconclusive nature of the clinical evidence. At the end of the day, causation is a question for the Court. Temporal considerations may enter into it, as may questions of credibility that cannot be delegated to the experts.” [26] The question is whether the evidence as a whole justifies a conclusion that the necessary nexus between the injury and the incapacity exists. In keeping with the dictum of Miller J is the observation of Lord Brandon in Rhesa Shipping Co S.A v Edmunds [1985] 2 All ER 712, 718: “No judge likes to decide cases on burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course for him to take.” [27] I regret that I am of the view that the there is insufficient or unsatisfactory evidence before me to reach a conclusion that the appellant has discharged the burden of proof upon her, of showing a causal nexus between her present tooth decay and the administration of the drug on a probability basis. The most that can be shown is that the administration of the drug could have been consistent with the tooth decay. There are not enough evidential pointers to carry this case to the extent of probability. For the reasons that I have given, I dismiss the appeal. However, if the appellant can come forward with better proof, particularly medical evidence 349-2004 7 addressing the causation issue, then the respondent no doubt would reconsider its primary decision. There is no order as to costs. DATED at WELLINGTON this …..12th...… day of ………November……. 2004 (J. Cadenhead) District Court Judge 349-2004 8