Russell v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2012] NZACC 357 UNDER The Accident Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. ACR 582/11) BETWEEN ROSEMARY RUSSELL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 9 October 2012 Appearances: Appellant in person Mr J Castle for respondent Judgment: 31 October 2012 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] This appeal concerns a treatment claim for damage to a tooth. The Corporation's decision dated 1 February 2011 declined cover for a fracture of tooth 25 leading to pulpal necrosis and subsequent temporomandibular joint dysfunction (TMJ). [2] The treatment on which the claim is based occurred in September 2003. The jaw injury came much later and Mrs Russell lodged her claim for cover for that injury in December 2010. The claim referred to the initial injury as "Fracture of tooth leading to pulpal necrosis". [3] The records from 2003 are incomplete. Mrs Russell has alleged that the Wellington Hospital Dental Services negligently disposed of the records, or removed some of them, but there is no evidence of that. The appellant's case is based on her own recollection of events and her own formulation of a medical explanation for the failure of treatment causing subsequent injury. Her explanation is based partly on advice from other people, including health professionals who have not committed themselves to writing. [4] Mrs Russell says that on 19 September 2003 she was given an injection in preparation for a filling. She produced her appointment card which referred to FLGS, the code for fillings. She says that, during treatment, the needle was induced with force and that it impacted on bone. She heard a bang and she thought her jaw was broken. The local anaesthetic numbed the left side of her face under her ear and lower jaw. The next morning she had trouble opening her mouth properly and had to stretch her jaw. I accept her evidence about all of that. [5] Mrs Russell had another appointment on 29 September 2003. This was a hygienist appointment for scale and polish. The record states "Full scale and polish done; OH given". There was no mention of any problem. Mrs Russell says that the dentist, the same one who had given the treatment on 19 September, examined her because of the incident on 19 September, but he made no record of his examination. [6] On 15 October 2003, Mrs Russell attended another dental appointment, for which there are clinical records stating: "Pt very talkative. #25 seems to be sore though degree of soreness is difficult to pick out of the word stream. Apparently not too sore but annoying. Sore at injection site - 29-9-03? BW shows decay in #25 and #26." [7] The tooth that has caused ongoing trouble is tooth 25, an upper left premolar. It had been sore at the injection site for four weeks by the time of this examination. Also it showed decay, though it was supposed to have been filled on 19 September. [8] Mrs Russell's written and oral submissions were very discursive. So far as I can understand, she says that the tooth had been fractured on 19 September and had been only partly filled, so that it had to be filled again. That would explain why the notes on 15 October mentioned some remaining decay on 15 October. She believed that records had been deleted for the earlier date. [9] There is a problem with interpretation of the above extract from the notes. Mrs Russell says that the notation #25 meant a fracture of tooth 25. There is no independent evidence that the dentist, or the Hospital Dental Service would have used such notation. A fracture would not be a routine finding and some more intelligible record would be expected. In ordinary notation the hash mark is commonly used to denote an item without using a numbering system. The hash mark was used frequently throughout the handwritten dental treatment notes over the course of a decade and I am not convinced that it meant that a fracture was identified on any occasion. On 15 October it was also used with reference to tooth 26. [10] However there was trouble with tooth 25 and on 14 November 2003, when the appellant next had a dental appointment, the clinical record referred to a large amalgam in tooth 25, which required refilling. [1 1] Further appointments were recorded on 23 February 2004, 2 September 2004 and on 5 October 2004 where it was noted that Mrs Russell had lost a filling. The clinical record showed that she believed it was the filling that was recently placed in tooth 25. The respondent says it was in fact the tooth beside tooth 25. The patient note reads "Pt belives it was filling placed last time. Explained that it was tooth beside last appt [word] 11 + 12 still in situ." The respondent's interpretation appears more likely to be correct. [12] On 3 September 2010 a fracture of tooth 25 was recorded. The note is not very clear and is written with abbreviated notation. It does use the hash mark and gives some support for Mrs Russell's belief that the # means fracture. I am still not convinced. [13] The proper way to clear up ambiguity or difficulty in reading health records is to provide a letter from a practitioner or other person who can be expected to know what they mean. That was not done. The claimant's own belief about what the records mean is not a good substitute. The respondent's evidence of interpreting the documents is not a great deal better. A document called a Treatment Injury Cover Decision Tool, unsigned and attributed to Clinical Advisor John Lowe stated "The next documentation relating to tooth 25 is on the 3/9/2010 and a fracture of tooth 25 is documented. X-rays evidence abscess and caries to tooth 25". That is the first reasonably clear evidence of a fracture to tooth 25. [14] The next treatment record was on 9 September 2010. The handwriting is much clearer but some abbreviations are technical. It refers to tooth 25 being non- symptomatic with draining puss occasionally, diagnosis of abscess and caries, and advice to the patient that there was a strong likelihood of the tooth requiring surgical removal. [15] The problem rapidly escalated. Mrs Russell was admitted to the Wellington Hospital Emergency Department on 26 November 2010, where she was seen by Dr Travis Westcott, Registrar. She had "severe left mandibular jaw pain and difficulty swallowing due to pain" and was treated with antibiotics. Mrs Russell says that it was diagnosed later by dentist Rosemary Jones as a broken disc in her cheek that caused the muscles to retract. [16] Mrs Russell then saw Elizabeth Hitchings, Clinical Leader of the Dental and Oral Health Service at Wellington Hospital. Dr Hitchings later offered an explanation of what she thought explained the events on 19 September 2003. She wrote: "I believe a more likely scenario is shock of local anaesthetic led to a deviation or increased opening of jaw, which led to TMJ pain. Therefore pulpal necrosis of tooth 25 is not related to accident. Agreed with patient that I would complete ACC treatment injury form but that it would have the above opinion written on it." [17] Dr Hitchings completed the ACC cover claim form. Mrs Russell says that Dr Hitchings asked another Rosemary Jones for a second opinion. Ms Jones said it was not the jaw but the "gravel sound" (possibly crepitus) that Mrs Russell had in her ear when chewing that was the characteristic sign of damage to the disc in her ball and socket joint in her cheek. Mrs Russell said that Dr Hitchings declined to put that on the ACC form. What she did put on the form was: "Fracture of tooth leading to pulpal necrosis." with an added note "Patient reports that local anaesthetic was given on 19 September 2003 with such force into the tooth (rather than the gum) that the tooth fractured." [18] On 11 January 2011, Mrs Russell saw Mr Peter Blake, otolaryngologist, who was helpful, but his area of practice did not include temporomandibular joint dysfunction. [19] Mrs Russell was later seen by Mr Young, Oral Surgeon. He apparently declined to provide a written report. Mrs Russell says that was because he works with Dr Hitchings and Rosemary Jones. Mrs Russell says that Mr Young believed that the incorrect repair of tooth 25 lead to its fracture leading to pulpal necrosis and abscess. [20] Mrs Russell says that she saw Ms Jones on 9 March 2011. Ms Jones reported to Dr Blake and arranged a scan, but the scan was taken over the wrong facial area, the sinus instead of the jaw. ACC decision [21] The Corporation issued its decision on 1 February 2011 declining cover on the basis that it was unable to determine on the evidence that the alleged injury was causally linked to the treatment provided on 19 September 2003. The decision letter was accompanied by a copy of the "Decision Tool" document with Mr Lowe's advice that: "Dr Hitchings stated the patient maintains that tooth 25 was fractured at the appointment on the 19/9/2003 when a LA was given as the injection was not given into the gum but into the tooth with great force with a loud bang in her jaw. However, Dr Hitchings stated that she believes a more likely scenario is the shock of the local anaesthetic lead to deviation or an increased opening of jaw and TMJ pain; therefore, the pulpal necrosis of tooth 25 is not related to the accident. Dr Hitchings agreed to fill out treatment injury forms but advised that this opinion would be made available to ACC. ACC requested a search for the medical records from the 19/9/2003; Capital and Coast Health have advised that there are no records available." [22] Dr Hitchings found a peripheral abscess of tooth 25. She made a possible diagnosis of TMJ dysfunction related to problems with tooth 25 causing a subconscious avoidance of that tooth. [23] The appellant took the Corporation's decision to review. In a careful decision, traversing all the relevant evidence, the Reviewer Ms Anderson was not persuaded that the appellant had TMJ as opposed to jaw pain. She was not able to find sufficient evidence of a personal injury to the jaw, but even if there had been an injury, it was not shown to have been caused by treatment. One alternative explanation was that it may have been caused by subconscious avoidance of pressure on tooth 25. As for the pulpal necrosis, the Reviewer observed that there was no written expert evidence that the condition could have been caused by treatment in 2003, and the appellant's advice of what other people had told her had no useful probative value. The Reviewer found that there was expert evidence that the necrosis and TMJ could be explained by other causes, and no expert evidence supporting the appellant's treatment injury claim. [24] On an appeal, the Court is required to look at the evidence afresh and reach its own conclusions. Decision [25] The claim for treatment injury cover does not rest on a simple factual proposition, but on a medical or dental question that inevitably requires expert evidence from a practitioner in support of the claim. The Court does not have any dental or medical expertise but is charged with the responsibility of weighing evidence and applying the law. The appellant's evidence of what she believes and what she has been told by others is of very little weight in deciding a medical question. [26] The causal link between an injection in 2003 and a fracture with necrosis and jaw dysfunction in 2010 cannot be made on the basis of the patient's own explanation of failures by a practitioner and consequent biological and mechanical effects leading to the injury for which she seeks cover. The appellant says that her tooth was fractured by the force of an injection contacting the tooth, and that the treatment on that day was an ineffective filling of a fractured tooth, later remedied by another filling. There are no records to support this account of events. To be fair, consideration can be given to the possibility that the dentist may have chosen not to record treatment that went wrong. By no means am I suggesting that is what happened, but the appellant is entitled to have the possibility taken into account in weighing the evidence. She suggests also that the Hospital Dental Service removed the records. That would be difficult with the continuous handwritten record sheet, but anything is possible. [27] There is evidence, which is also not presented by way of a signed document, that Dr Hitchings advanced a different explanation for what happened on 19 October 2003. That is a credible explanation that the bang that the appellant recalled on that date could have happened when she opened her jaw wide in response to a painful injection. I know that the appellant has a strong and clear view about that, but it must be accepted, when considering the reliability of evidence, that a claimant's subjective view is not strong evidence on a medical question. 28] Certainly it is reasonable to accept the appellant's evidence that an event of the kind that she described happened on that date. What cannot be accepted so easily is exactly what the biomechanical event was and what it caused to happen to her tooth and her jaw. [29] If the tooth had been fractured then, it would be likely that the records would have made some mention of it before 2010. The other possibility is that the tooth eventually fractured through a natural weakness. The connection between the injection in October 2003 and later temporomandibular joint dysfunction is also not obvious and requires medical evidence. In short, there is no medical evidence to support the appellant's claim for cover. [30] For those reasons, the appeal is dismissed. Judge D A Ongley District Court Judge