Bryant v Accident Rehabilitation and Compensation Insurance Corporation

Decision Ne 302/ 99 IN THE DISTRICT COURT - DCA No. 241/98 AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN P.G. BRYANT Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Heard at Auckland: Date of Judgment: 28 October 1999 Counsel: Mr Bryant (twin brother of the applicant) for applicant D. Tui for respondent RESERVED JUDGMENT OF JUDGE G.V. HUBBLE This is an appeal from the review decision dated 2 April 1998 declining to pay Mr Bryant weekly compensation for the period 1 April 1993 to 31 March 1997 on the basis that there was no medical confirmation of his incapacity due to a medical misadventure which in turn occurred on 14 October 1992. [I:JUDICIAL\Hubblej\Bryant.doc jab] 2. Background: Throughout the 1980's, Mr Bryant appears to have been fit and had few medical problems. He ran in many marathons, including one ultra marathon. In September 1991, he saw Dr Stokes, a Gastroenterologist, who reported that he saw him for "His colonic symptoms manifest in the main with diarrhoea and abdominal cramps which I thought most likely related to an irritable colon. Other problems at that time were a quite markedly elevated serum cholesterol level of 9.1 and slight abnormalities of his liver function tests. These liver function tests were documented as becoming normal in March 1992. In June 1992, he was prescribed Simvastatin to treat the elevated cholesterol level. He showed a marked reaction to this drug, and within one month became jaundiced and showed a marked elevation in all his liver enzymes. After a period of approximately six weeks, he was taken off Simvastatin. He had on-going gastric problems, but there was no medical evidence that the diarrhoea he experienced was caused by taking Simvastatin. It is accepted by medical evidence and the medical literature that Simvastatin is not known to cause any long term diarrhoea, although short term side effects of that nature are recognised as possible. In August 1992, Mr Bryant was wrongly diagnosed as having cancer. The wrong diagnosis was not discovered until he was actually operated on, on 24 October 1992. There was no evidence of cancer found during the operation, although his appendix was removed. He was also on Prozac in October 1992, because of a 3. stress and depression, and no doubt this was the result of the wrong diagnosis of cancer, and it was contributed to by his adverse reaction to Simvastatin. After the surgery in October 1992, Mr Bryant says that he had constant and unexpected explosive diarrhea and on 8 December 1995, he applied to the Corporation for cover because of the medical misadventure based on the misdiagnosis. The Medical Misadventure Advisory Committee recorded as follows:- "MMAC pharmacologist is of the opinion that the initial bout of hepatitis was due to Simvastatin and that the on-going abnormalities are due on balance of probabilities to the anti depressive medication." At that stage and for sometime thereafter, Mr Bryant also attributed his diarrhoea to the taking of Prozac. Throughout this period, Mr Bryant was employed by Waikato Hospital. Following the operation he took six weeks to recover, and then two weeks annual leave, five weeks sick leave and then was available again for work, but within a few days of returning in March 1998, he resigned from the hospital and began running a hotel with his brother. The evidence from Dr Lane, who throughout the relevant period, was Mr Bryant's GP, was that Mr Bryant resigned willingly from the hospital in order to take up his own self employment, and Dr Lane was not prepared to certify 4. incapacity for the purpose of the claim under the Act. Against this Mr Bryant had approached Margaret McGill, who was formerly General Manager, Surgical Services at Health Waikato, and she advised in a letter dated 4 June 1998 as follows:- "Mr Peter Bryant left his role as theatre manager at Waikato Hospital for a few days sick leave which extended to a further three weeks. An extra extension was required for an additional two weeks and unfortunately due to Mr Bryant's severe clinical condition he was unable to return to his work place." This was her recollection over four years after the event. Mr Bryant's letter of resignation on 26 March 1993 was in the following terms:- "Indifferent health over the last four to five weeks which I believe refers back to overdoing things in the early part of my Thames Hospital work, has meant that I am not in a position to do the job required of me." It is certainly true that diarrhoea appears to have been a problem in February 1993 because Dr P.L. Stokes says that he saw Mr Bryant in February 1993:- "When his diarrhoea had become one of his important health problems, others being the persistent abnormal liver function test and the abnormal blood lipid studies. He had become very anxious and depressed and had been taking the drug Prozac for two months to date." Dr Talbot, in May 1994, refers to having seen him in April and that:- "He gave a nine month history of lassitude and drowsiness with loose, explosive bowel motions." On 18 December 1995, Dr David Lane saw him and reported:- 5. "Peter now suffers from an anxiety depression and the diarrhoea may well be due to this rather than the bowel operation. It is hard to tell sometimes." After full enquiry the Corporation issued its primary decision accepting cover on 15 April 1997, and Mr Bryant followed this with an application for weekly compensation. This claim was declined on 5 May 1997, and at the first hearing of a review on 10 July 1997, the Corporation was directed to make further enquiries and obtain further evidence in order to assist in the determination of the question of entitlement. In particular, there was the issue as to whether or not the medical misadventure (namely, the prescribing of Simvastatin caused serious diarrhoea being suffered by Mr Bryant, which in turn resulted in his incapacity to work at Waikato Hospital. This is essentially a medical question. It is important to note that the question is not whether the medical misadventure is the cause of the on-going problem which has clearly continued for a number of years, but whether or not it was the cause of incapacity in March 1993, by reason of this explosive diarrhoea A brief summary of the medical conclusions is as follows. Dr Carl Burgess, Associate Professor of Clinical Pharmacologists, reported to the Corporation on 7 October 1996 and concludes that in his view the Simvastatin (referred to by him as Pravastatin) "seems to have set off the hepatitis and I would think on balance that this was the cause for the illness in 1992. ... These abnormalities since 1993 could not be due to Pravastatin". In short, he concludes that the medical misadventure may have caused or contributed to hepatitis, but he makes no link 6. between that and the diarrhoea, and in fact says that the on-going problem is more likely to be due to the taking of multiple anti depressants. Dr Stokes, the Gastroenterologist who saw Mr Bryant on a number of occasions, acknowledges that he had a previously existing colonic irritable bowel problem and said he was not in a position to know whether this was made worse because of the taking of the drug. He appears to agree with Dr Burgess that the poor energy and general ill health was in a substantial part attributable to the known underlying liver problem caused by Lipostat (Simvastatin). Dr Briant reported to the Corporation in November 1997 after review of other medical reports. She acknowledges Simvastatin may have caused the jaundice problem, but says that when the drug was withdrawn the abnormality essentially resolved. In her opinion:- "The diarrhoea is not related to either the chronic persistent hepatitis or to either of the medicines, but is a pre-existing condition of irritable colon. It may have been made worse by some of the events of his life". In her view there was no inability to work caused by the medical misadventure. That misadventure may have caused the liver problem, but in her view it did not cause the diarrhoea. The liver problem in itself did not cause incapacity. She says:- "I do not see a connection between the drug exposure (or indeed the surgical intervention) and the diarrhoea. I believe the diarrhoea has a function origin well before his drug exposure and is therefore non-ACC." 7 . She also said:- "Diarrhoea is not specifically recorded as a recognised complication of the use of Statin drugs. Constipation is more likely to occur, but gastro intestinal upsets are usually few and far between with the medicines. I find no evidence to suggest that persistent diarrhoea would be related to Simvastatin exposure." The Review Officer indicated that there was some evidence to the contrary at the hearing, but she certainly accepted, based on evidence from the manufacturers of the drug (Messrs Merck Sharp and Dhome) that there was no evidence to indicate that the drug would cause long term effects in the nature of diarrhoea. The matter was revisited by Dr Briant, who acknowledged that:- "A few loose bowel motions might be induced by current Statin therapy but profuse and disabling diarrhoea continuing for years after the discontinuation of a few weeks exposure to Statin is extremely unlikely." Finally, on 16 August 1999, Dr Stokes revisited the problem and again expresses the view that it was at least possible that the Lipostatin contributed to the worsening diarrhoea which caused Mr Bryant to resign from his job at the end of March 1993. He acknowledges that Mr Bryant did have a troublesome colon from 1991 which was already becoming more of a problem at the time he developed the drug reaction. He postulates that stress resulting from the wrong diagnosis and the surgery may have been a factor, and as far as the on-going problem is concerned, he says: - "I think it more likely that the severe untoward events of his life were a major contributing cause to the progressive diarrhoea problem and anxiety." He concludes:- 8 . "In the case of Peter Bryant I believe that the adverse reaction to the drug Lipostatin was such a factor and that this contributed to a deterioration in his colon condition to such an extent that he became unable to continue in salaried employment by the end of March 1993." The last word is had by Dr Briant, who comments on the above remarks by Dr Stokes:- "1 . You ask for my comment on Dr Stokes conclusion on the issue of causation of the diarrhoea: Dr Stokes conclusion is unclear but essentially he backs all possibilities as potentially causative of Mr Bryant's worsening irritable colon syndrome. There is no question that this diagnosis was established in 1991 when Mr Bryant presented to Dr Stokes with diarrhoea. When Mr Bryant had his Lipostat reaction in Auckland 1992 he reported to the physician at Thames that he had had a further change in bowel habit for six months with some 3-4 loose stools a day. Thus there is plenty of documentation that diarrhoea was a pre-existing symptom and worsening before exposure to Lipostat, and it was attributed to irritable colon syndrome by his gastroenterologist. Dr Stokes described emotional and psychologic stresses as well as other health problems as potentially worsening the diarrhoea of irritable colon and then he goes on to describe Mr Bryant's increasing anxiety and depression and says in the penultimate paragraph, '... I think it more likely that the severe untoward events of his life were a major contributing cause to the progressive diarrhoea problem and anxiety.' It is almost as an after thought that in the last paragraph Dr Stokes says he believes that the adverse reaction to the drug Lipostat could have been a factor that contributed to the deterioration of his colon condition. It is important to note he says a factor, not the factor; he outlines all of the possibilities I read Dr Stokes report as quite clearly indicating that the irritable colon was a pre- existing condition and that many stressful events in Mr Bryant's life contributed to the worsening of his irritable colon. Lipostat and the cholestatic reaction he had to it were but a minor part in that chain reaction and not the initiating factor." (My Emphasis Added) The issue: The whole issue of acceptance of this claim was referred back for review in a decision on 11 March 1998. 9. In relation to this particular case, Mr Bryant is covered only if he can establish that there was a medical misadventure which caused a "personal injury". A "medical misadventure" is covered by reason of s.8(2)(c) of the Act, and medical misadventure is defined by s.5 as:- "Personal injury resulting from medical error or medical mishap." In my judgment, Mr Bryant faces an initial difficulty here because of the definition of medical misadventure. For example, medical mishap is confined to cases where the adverse consequence would not occur in more than one percent of cases, and "medical error" does not arise solely because desired results are not achieved, or subsequent events show that different decisions might have produced better results. This however, has not been an issue raised on this appeal, and therefore the principal issue is whether or not Mr Bryant has established that he suffered a personal injury in 1993 which was caused by the medical misadventure, and in turn he must also establish that he was rendered incapable of working in the employment he was engaged in at the time by reason of that personal injury. Decision: In my judgment, Mr Bryant's principal difficulty is not so much in establishing his incapacity to work with Waikato Health, but rather his ability to discharge the burden of proving that the disability he did suffer was caused by medical 10. misadventure. The learned Review Officer of course found against Mr Bryant on both issues. I will therefore examine them in turn "Incapacity": The question here is whether or not in terms of s.37(a)(2) of the Act Mr Bryant was a person who by reason of the medical misadventure was "for the time being" unable to engage in the employment in which he was engaged when the personal injury occurred. It is fair to observe, as Mr Cliff Cord (an experienced ACC manager called by Mr Bryant) concluded, Mr Bryant was a very fit person who had run some thirteen marathons between 1983 and 1990, and that he was incapacitated by the liver problem and explosive diarrhea shortly after the unnecessary operation. The evidence given by Jillian Rosemergy supports the fact that he was very well thought of in the job he did, and was not inhibited by health problems prior to 1992. She said:- "I have known Peter and worked with Peter for the last twelve months while he has been employed as the manager: administration and estate services at Thames Hospital. He has enthusiastically taken on all the challenges that have presented at Thames Hospital and worked with tireless energy to bring about solutions which would benefit Thames Hospital and the Waikato Health Board." Mr Bryant's letter of resignation, and Margaret McGill's comments concerning his reason for leaving on p.4 (above), go little further than to indicate that he had indifferent health. Diarrhoea is not mentioned. Certainly, Dr Lane was not prepared to be party to any suggestion that Mr Bryant had to leave because of his condition. However, in my judgment, diarrhoea is a delicate subject and not one you would necessarily raise in the face of an employer as a reason for leaving. It is 11. perhaps understandable that it was not specifically mentioned. Nor do I overlook the fact that Mr Bryant went immediately into a partnership with his brother to run a hotel. That however, would be within the private environment where no doubt the problem could be handled with some degree of privacy and assistance from a family member. In balance I believe there was evidence on the balance of probabilities to support the view that Mr Bryant was incapacitated from working with the Hospital Board as a result of the difficulties he was having with his health and in particular the diarrhoea. Causation: In this area I agree with the learned Review Officer that Mr Bryant has considerable difficulties. The medical evidence clearly shows that he had irritable colon syndrome and some liver problems prior to the medical misadventure. Concerning this Dr Stokes said:- "No cause is known for irritable colon syndrome. It causes diarrhoea often with abdominal cramps, urgency and frequency of defaecation and its severity can vary from being a minor nuisance to it becoming a socially devastating problem. ... I feel this man did have a troublesome colon from 1991 which was already becoming more of a problem at the time he developed the drug reaction. But from this point on it became a good deal worse. Perhaps the stress of the later surgery was an initial factor." The difficulty for Mr Bryant arises in my judgment because a clear distinction should be drawn between the diagnosis or "personal injury" and the symptoms which manifest themselves as a result of that "injury". There can be no doubt that Mr Bryant had very severe symptoms, and as already indicated, in my judgment these rendered him incapable of working. The problem is that it is clear from the medical evidence that on the balance of probabilities these symptoms were caused 12. by a pre-existing condition, perhaps made much worse by the drug treatment. However, drug treatment or medical misadventure here has merely made the symptoms worse. It did not cause the injury. The "egg shell skull principle": This principle became established in the law during the "personal injury" days. If a person who happened to have a very thin skull was faced with a relatively minor impact injury to the head, and as a result suffered very severe brain damage, liability had to be accepted even though a "normal" person may not have suffered any injury at all. However, there was no suggestion that the thin skull was caused by disease. The person just happened to have the attribute of a thin skull. In my judgment, there are difficulties in applying that principle to diseases under the present Act because of the need to establish causation between the "personal injury" and the disease. No doubt diseases can be caused by the work place, and perhaps asbestosis is one; but where it is established that a person has a pre-existing disease or condition, and that condition or disease is made worse by the injury because serious symptoms develop, then although the injury may have caused a flare up of symptoms, it could not be said that it has caused the injury. In Tran v ARCIC 220/98 His Honour Judge Beattie made the following statement:- "I find as a matter of law that the fact that flare ups of those (pre-existing) conditions may be triggered by work place factors cannot bring that person within the provisions of section 7(1)(a) ... If one has the disease when one comes to the work place where that disease is triggered or flares up, that does not mean that the property or characteristic caused or contributed to the establishment of the disease. It must be the disease itself that is created in the work place, not simply a more 13. acute manifestation of it. I find that the egg shell skull principle has no application whether as a pre-existing or underlying disease or infection which is exacerbated by work place conditions." This contrasts with the comments made by His Honour Judge Baber in Munro v ARCIC, 108/99 to the following effect:- "If the appellant seems to have a pre-disposition or personal susceptibility in any way to fibromyalgia, that is something the respondent Corporation must accept. I would have thought that to be settled law." These findings are of course not necessarily inconsistent; if the claim is made because an alleged disease has developed, and it is established that that disease existed prior to the individual incurring the medical misadventure, then clearly the disease has not been caused by medical misadventure. If, on the other hand, a person merely has a pre-disposition to a particular condition and that particular condition is a "direct result" of the medical misadventure, then the medical misadventure could be said to have caused that condition. Mr Bryant's is an unfortunate case, but in my judgment all the medical evidence on the balance of probabilities is against the conclusion that the medical misadventure caused his condition. In the circumstances I must agree with the Review Officer and the appeal is dismissed. Should any issues of costs arise which cannot be settled between the parties, I invite the filing of a memorandum. (G.V. Hubble) District Court Judge