C v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 77 /2009 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ROBYN CAROLL (Al 65/07) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON THE PAPERS [1] This appeal was scheduled for hearing at 11.30 a.m. on 24 April 2009 at the Tauranga District Court. The appellant in this appeal is representing herself and she was advised of the time, date and place of the hearing by letter of 7 April 2009. [2] The appellant did not appear at the appointed time and could not be contacted. There had been an earlier hearing of this appeal in 2008 which similarly had to be adjourned because the appellant, who labours under a mental disability, was hospitalised at the time. [3] Subsequent to that first scheduled hearing when the appellant did not appear, the appellant was requested by the Registry to file submissions and at a Directions Hearing in Tauranga on 20 August 2008 the appellant appeared and presented those written submissions. She was then advised that the Registry would allocate a date of hearing once submissions from the respondent had been filed. 65.07 (pg) 2 [4] The respondent duly filed its submissions together with a bundle of relevant documents and was represented at the scheduled hearing by its counsel, Mr A D Barnett. [5] In view of the fact that the appellant had filed submissions I determined that the appeal should not be dismissed for the non-appearance of the appellant, but rather, that the appeal be considered and determined on the papers, as had been filed. [6] The issue in the appeal is whether the appellant is entitled to cover for a mental injury claimed to have arisen as a consequence of an incident of sexual abuse by a relative when she was a young girl aged about 7. (7] At the time that cover was sought in June 2006 for that incident, the appellant was aged 28 years and had a significant psychiatric history from about the age of 17. [8] It is the case that the issue of sexual abuse only came to light during discussions whilst she was in psychiatric care in 2006. [9] At the time that the claim for cover was made, the respondent was provided with a report from Dr Dejan Mandic, Consultant Psychiatrist with Community Mental Health, a division of Bay of Plenty District Health Board. [10] Or Mandic was asked to review the appellant's psychiatric history and advise whether the occasion of sexual abuse was causative of her mental condition. [11] Dr Mandic reported to the respondent's Sensitive Claims Office on 15 September 2006, advising that he had considered and reviewed five volumes of the appellant's psychiatric files currently held by the Bay of Plenty District Health Board Mental Health Service. [12] Dr Mandic advised that in the context of DSM IV, the appellant's diagnosis for Axis I was Bi-Polar Mood Disorder or Schizoaffective Disorder. Dr Mandic went on to state that genetic factors likely played a part in her mental illness in that both her parents suffered from major mental illness. 3 [13] Dr Mandic concluded his advice by stating that experiences of sexual abuse could trigger an episode of mental illness, but the overall pattern of her mental illness was more of a genuine psychotic mood disorder. [14] Dr Mandic's report was considered by the respondent's Branch Medical Advisor, Or Bell, and his advice was that the appellant's mental illness was not caused by any past sexual abuse, but that it might have acted as a trigger for episodes of pre-existing psychotic/bi-polar illness. [15] On the basis of Dr Bell's advice, the respondent issued its decision of 19 September 2006, declining to grant cover to the appellant for her mental illness [16] The appellant sought a review of that decision and presented at a Review Hearing on 9 January 2007 with a counsellor and advocate. No new medical evidence was introduced for the purposes of that Review Hearing and after considering the evidence, Mr Haines, Reviewer, issued a decision dated 17 January 2007, determining that the appellant's mental illness had not been caused by any instance of sexual abuse. [17] For the purposes of the appeal to this Court the respondent had the appellant examined again by an independent psychiatrist, Dr John Vickers. Dr Vickers provided a report following a consultation with the appellant on 26 March 2009. [18] In his report Dr Vickers noted that the appellant had a lengthy psychiatric history, with her first admission to a psychiatric hospital at age 17, and with a number of admissions since that time. Dr Vickers' assessment of the appellant was that in accordance with the diagnostic criteria of DSM IV, her Axis I condition was schizoaffective disorder. He went on to state that the appellant did not give a history indicative of mental disorder arising from sexual abuse, and it was his opinion that although the appellant did have a major mental illness, it was unrelated to her abuse history and in all likelihood her condition had a genetic basis. [19] Dr Vickers went on to state that the condition of a schizoaffective disorder was a biologically or genetically determined condition, and that mainstream psychiatric opinion was that this type of disorder was not caused by sexual abuse. (20] The interview which Dr Vickers had with the appellant covered many of the matters which the appellant put in writing to the Court as her submission, that submission in effect relating her rather unfortunate personal history, both medical and social, and it did refer to the sexual assault which had occurred when she was quite young. [21] There is nothing in the appellant's submissions which would suggest that Dr Vickers' assessment was not made with all appropriate information, and in those circumstances the Court accepts the assessment made by Dr Vickers that the appellant's mental illness cannot be said to be attributable to the sexual assault. (22] In those circumstances, it must be the case that the appellant cannot have cover for her mental illness as the medical evidence establishes that there is no causative link between the personal injury suffered and the mental illness that arose at a later date in her life. [23] Accordingly, this appeal is dismissed. DATED this 14 day of May 2009 M J Beattie District Court Judge