Anderson v Accident Compensation Corporation

IN THE DISTRICT COURT Decision 4 / 2010 HELD AT WELLINGTON UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN SONYA ANDERSON Appellant (Appeal No. AI 20/08) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on 20 November 2009 APPEARANCES The appellant appeared in person. Mr D Tui, Counsel for Respondent. RESERVED DECISION OF JUDGE J CADENHEAD THE ISSUE [1] This is an appeal pursuant to section 149 of the Injury Prevention Rehabilitation and Compensation Act 2001 ("the Act"). On 19 July 2007 the respondent made a decision ("the decision") that the appellant's current incapacity was not related to her covered injury on 30 December 2006 and declined weekly compensation from 3 February 2007. [2] The appellant, pursuant to s135 of the Act, took the decision on review. That review was heard before Mr J W Haines on 5 December 2007. By a written decision Mr Haines dismissed the appellant's application for review. It is from that review decision the appellant now appeals. [3] The grounds of appeal set out in the Notice of Appeal appear to be as follows: JUDICIAL\CADENHEAD\ACC\Anderson, S [a] The specialist evidence did establish the appellant's ongoing incapacity was related to the injury she received in the swimming pool on 30 December 2006; [b]. . That prior to the injury sustained in the swimming pool on 30 December 2006 she had had no symptoms of discomfort after her successful open nissen fundoplication operation; and [c] That the respondent's decision was unfair because the appellant remained incapacitated to work. BACKGROUND OF FACTS [4] I have substantially set out the background of facts as provided by the respondent as a reading of the file shows that the same is accurate and provides a fair summary of what transpired. [5] The appellant made a claim for a treatment injury (under $32 of the Act) following a surgical procedure in 2004 (a Nissen Fundoplication). She sought cover for symptoms which she claimed resulted from that operation. That claim was declined by the Corporation (claim R6942818174) on the basis no physical injury resulted from the operation. [6] The appellant had an accepted claim for cover for an incisional hernia suffered on 6 June 2006 after she had injured herself from pulling a lawn mower cord (claim R6942818296). [7] The appellant had cover for a hernia suffered following an incident on 30 December 2006 when she was stretching up to a diving board (claim R6942818259). Based on that injury ACC accepted the appellant was incapacitated and paid weekly compensation up to 3 February 2007. This was subsequently diagnosed as a recurrent hiatus hernia. [8] The appellant continued to have problems and in May 2007 she sought to have weekly compensation backdated to February 2007 based on the hernia injury suffered on 30 December 2006. Dr Firth, her GP, provided her with a backdated certification of incapacity from February 2007. 2 (9] Various specialist medical reports were obtained which included reports from Mr Cable, Professor Windsor (16/3/07, 9/7/07), together with an ultrasound carried out by Dr Travis, which showed no evidence of a ventral hernia. [10] On 19 July 2007 ACC, based on the evidence it had received, declined to provide weekly compensation. THE REVIEW DECISION [11] In summary, the reviewer concluded: [a] that for the appellant to have entitlement to weekly compensation she must establish, on the medical evidence, that her ongoing incapacity/problems was caused by this covered injury; and [b] the specialist evidence did not establish that the appellant's ongoing incapacity was causally related to her covered injury on 30 December 2006. THE SUBMISSIONS OF THE RESPONDENT [12] The respondent submits that this appeal raises two primary issues: [a] Causation - whether the appellant's condition is due to the covered injury on 30 December 2006; and [b] Incapacity - if causation is established under s103, is the appellant incapacitated for her employment due to her condition. [13] It is the respondent's case that there is no causation between the December 2006 injury and her current condition and, even if causation was established, the appellant is unable to demonstrate incapacity due to her covered injury or injuries. RELEVANT LEGAL PRINCIPLES [14] Under s 102 of the Act the Corporation, in determining the incapacity of a claimant, must consider any assessments undertaken by a medical practitioner and 3 may obtain any professional, technical, specialised or other advice from any person it considers appropriate (s 102(2)). [15] Section 103(2) provides: "(2) The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury". [16] Under s 104, if the Corporation determines under s 103(2) that the claimant is not incapacitated for employment he or she is not entitled to receive weekly compensation for lost earnings. CAUSATION [17] The basic concept under s 8 of the Act is that cover is granted to persons who suffer personal injury by accident. There is an ongoing requirement that a person who has been granted cover for a particular personal injury must establish that it is for that particular injury that he or she is seeking entitlement. The appellant who has cover for an injury for which he or she is receiving entitlements has an ongoing duty to be able to show that his or her need for entitlements arises out of, or is causally linked to the covered injury. Where a claimant cannot show that such a link still exists, then he or she is no longer eligible to receive that entitlement. INCAPACITY [18] There is no dispute the appellant suffered a personal injury on 30 December 2006 and she received cover for it from ACC through to 3 February 2007. Even if the appellant could establish there was a causal link between her current condition and the injury on 30 December 2006, which the respondent denies, the appellant is unable to demonstrate incapacity due to her covered injuries. [19] The material available to ACC prior to making its decision of 19 July 2007, and the reviewer in dismissing the review, included the following: [20] The appellant injured herself on 30 December 2006 when she pulled herself up whilst doing pool exercises. She felt a ripping in her stomach. She consulted her doctor who lodged a claim for ventral hernia (ACC45 8/1/07) (doc 2). 4 [21] She was referred to the surgeon, Mr Cable, who had previously revised hiatus hernia repair and repaired two incisional hernias. [22] The appellant was certified with incapacity for her work as a midwife for Lakes DHB until 3 February 2007. She was paid weekly compensation through to . . . . . that date. 23] Mr Cable reported that clinically her abdominal wall was intact and there was no sign of a recurrent incisional hernia. He noted there was a possibility she had sustained a recurrence of the hiatus hernia. (Letter Cable to Firth dated 18 January 2007 - doc 3). She was referred for imaging tests and a barium meal. [24] Mr Cable in his report of 15 February 2007 (doc 5) said the appellant presented with three types of symptom following the strain injury: [a] Problems at the level of the hiatus hernia repair - he noted the possibility of some tearing of the diaphragm at the moment of straining with resultant development of a small hiatus hernia; [b] Pain at the site of the previous repair of the incisional hernia - he reported the abdominal wall appeared intact clinically; [c] Swelling in her lower abdomen - x-rays were considered and no bowel obstruction was found to explain the bloating (letter Mr Cable 8/3/07 -doc 7). [25] With respect to incapacity Mr Cable noted that the appellant should return to work even if she was having intermittent symptoms. [26] On 27 February 2007 Dr Firth referred the appellant for a second opinion from Professor Windsor (doc 6). Professor Windsor's report is dated 16 March 2007 - doc 8). He referred to the "constellation of symptoms" and noted the herniation may have occurred on 30/12/06. He said "the fundoplication is no longer optimally positioned with slippage and some recurrent herniation. This may well account for her gas bloat syndrome, which is probably made more severe by the diverticular disease.. (27] On 2 May 2007 David Shaw reported to Professor Windsor the results of manometry and pH monitoring. He reported both anatomical and functional 5 fundoplication failure and no significant abnormality of oesophageal peristalsis (doc 9). [28] On 4 May 2007 Prof Windsor wrote to Dr Firth (doc 10) saying he would not offer surgery for the hiatus hernia and that the appellant had normal peristalsis of the oesophagus, rapid gastric emptying and normal acid exposure of the lower oesophagus. [29] On 9 May 2007 ACC wrote to the appellant advising her it had accepted incapacity until 3 February 2007 for the hernia injury (doc 11). [30] Dr Firth certified the appellant for ongoing incapacity from 3 February 2007 on 14 May 2007 relating to abdominal symptoms, depression and ongoing anxiety (doc 12). [31] The appellant applied for review of ACC's letter of 9 May 2007 and the parties subsequently agreed, by a mediated agreement on 24 May 2007 (doc 13), that ACC would continue to investigate whether the appellant was entitled to weekly compensation. The appellant agreed to withdraw the review. [32] Further tests/ reports included: [33] Dr Griffith - reported gastroscopy and colonoscopy on 19/6/07 - he said the small anterior pouch appeared to be asymptomatic in so far as there was no inflammation or retained debris within it. Colonoscopy findings of moderate diverticular disease (doc 16) [34] Dr Travis - ultrasound on 2/7/07 - no hernia was found in the abdominal wall (doc 17). [35] Professor Windsor agreed in his letter of 9 July 2007 that there was no ventral hernia. With respect to the recurrent hiatus hernia, in view of the normal acid studies and normal oesophageal peristalsis, he concluded it was not possible to attribute any incapacity to that (doc 18). [36] On 19 July 2007, on the basis of the various reports and tests referred to above, ACC issued a formal decision to decline weekly compensation for incapacity from 3 February 2007. 6 [37] As discussed above, the appellant's entitlement to weekly compensation depends on whether the cause of her incapacity arises from her covered personal injury. Causation is a medical question. [38] ACC granted cover for a hernia. The evidence of Mr Cable and Professor . . . . . Windsor confirmed that it is probable the recurrent hiatus hernia was caused by the appellant's accident in the pool on 30/12/06. [39] In terms of the cause of the incapacity, there are essentially 3 divergent views: [40] Dr Firth's certification - this diagnosis of incisional hernia and his certification of the appellant being unfit for work has essentially remained unchanged. This needs to be considered in the context of his description of the reasons for the incapacity as "a complex mix of physical and psychological issues compounded by her work situation becoming more stressful over the last year " (doc 14). 41] The specialist opinions and investigative tests undertaken. Mr Cable on 15 February 2007 attributed some of her symptoms to a "small hiatus hernia". However the ultrasound from Dr Travis found no hernia in the abdominal wall and Professor Windsor found that based on the normal acid studies no incapacity could be attributable to the hiatus hernia. Mr Cable and Professor Windsor are experts in their respective fields. Their opinions are based on investigative tests that were undertaken. Both accept the injury as a probable consequence of the pool accident. Mr Cable advised a return to work in February. Professor Windsor concluded it was not possible to attribute any incapacity to the herniation. FURTHER MEDICAL REPORTS [42] At a hearing of 21 February 2008, after hearing from the appellant and the respondent I adjourned the matter part heard in order for further medical reports to be obtained. The reports were to clarify whether the appellant's ongoing symptoms were due to a physical injury suffered in her accident of 20 December 2006. [43] Further reports have now been obtained from Mr Bertrand Jauffret, consultant general surgeon (25 November 2008 and 20 July 2009), and from Professor John Windsor (28 December 2008). MR JAUFFRET - 25 NOVEMBER 2008 [44] Mr Jauffret outlined the appellant's medical history. He noted (at pp 2-3) two previous medical procedures undertaken: [a] April 2004: a laparoscopic nissen fundoplication undertaken by Mr Watson; [b] 1 September 2005: a re-operation by Mr Cable in which he undid the 360 degree wrap of the previous nissen procedure, re-dissected the wrap and rebuilt a Toupet procedure with a 270 degree wrap on the posterior aspect of the oesogastric junction. [45] Mr Jauffret reported (at p 3) that in the subsequent accident in the swimming pool in December 2006 the appellant experienced a tearing sensation. She was examined by Professor Windsor after a barium meal demonstrated "a slide of the oesogastric junction into the chest with again an epiphrenic type dilation of this part of the oesogastric junction between the wrap and the lower oesophagus localised above the diaphragm". [46] Mr Jauffret went on to advise: "It is possible to assume that part of Sonya's symptoms were due to this deterioration of the local anatomy following a period where she was very comfortable when the oesogastric junction was in the right place." [47] Mr Jauffret went on to report (at p 4) that he first saw the appellant in February 2008: "There was no obvious sign of gravity in her presentation. There was no mucosal lesion endoscopically, she was not having any weight loss or any dysphagia, she had no respiratory symptoms or any aspiration. She was not bleeding." [48] Mr Jauffret went on to report (at p 5): "For the last eight months I met Sonya at least five times in Outpatients. It is clear that she is suffering from gastro esophageal reflux disease which is partially, but pretty well controlled with the medical treatment. She also presents quite significant post-prandial epigastric discomfort which is, in my opinion due to the 8 malposition of a small part of the stomach above the wrap above the diaphragm, building up this pseudo-epiphrenic diverticulam." [49] With regard to causation he advised (at p 6): "It is very difficult for me to point precisely what was responsible for the deterioration of Mr Cable's re-operation. Sonya says that she was doing pretty well after his re-operation and that something suddenly happened when she was in the swimming pool which changed the outcome completely. Because we have the luxury of two barium swallows, one just after Mr Cable's operation showing a normal positioning of the oesogastric junction below the diaphragm without any pseudo epiphranic diverticulam, and another one fifteen months later in February 2007, showing that the oesogastric junction had slid in the chest with re- appearance of the pseudo epigastric diverticulam. We are obliged to assume that something happened in between to explain this obvious anatomical change. We have in good faith to believe Sonya when she says that this happened on 30 December 2006 when she had this abdominal injury during this exercise in the swimming pool. " PROFESSOR JOHN WINDSOR - 28 DECEMBER 2008 [50] Professor Windsor referred back to his previous report of 16 March 2007 and advised that with regard to the incident in the swimming pool 'I stated in the previous letter that there was a small epiphrenic diverticulam on the second barium swallow, which had developed since the re-operation by Mr Cable. This had not been mentioned in the report. I go on to say that 'there is a small herniation above the fundoplication, which might reflect caudal slippage of the fundoplication or cardial herniation. It might also reflect a shortened oesophagus. This herniation may have occurred on 30 December 2006 when she experienced a sudden, severe, sharp pain when pulling herself up on the diving board. The fundoplication is no longer optimally positioned, with slippage and some recurrent herniation.' On the basis of her symptoms, which have been consistently reported to various doctors, it appears that Mrs Anderson did suffer a physical injury in the pool. The two barium studies demonstrate before and after evidence of the re-occurrence of herniation. This is the injury." [51] With regard to whether the appellant's symptoms were due to herniation he advised: "It is my opinion that some of these symptoms are likely to be due to the injury, but not all of them. I note that Mr Jauffret has offered further surgery, and this will determine what symptoms, in retrospect, have been due to the injury.' MR JAUFFRET - 20 JULY 2009 [52] In his second report, completed after carrying out the further surgical procedure, Mr Jauffret described more fully the slippage of the oesogastric junction / 9 the herniation, and the appearance of the pseudo epigastric diverticulam. With regard to the slippage of the oesogastric junction / the herniation he advised (at p 2): "Herniation is the migration of either the oesophagus with its wrap around it through the hiatus or just a slide of the oesophagus and the oesogastric junction without the wrap which stays in the abdomen. In Pr John Windsor's description it is probably the second case oesogastric junction alone. The wrap tends to be exercising, in this case, pressure below the oesogastric junction which is giving her symptoms." [53] Mr Jauffret went on to advise with regard to the appellant's symptoms (at p 3): "Slippage of desogastric junction is equivalent to herniation of oesogastric junction. It just means that the location of the connection between the oesophagus and the stomach which should be at least 3-4 cm below the hiatus is migrating to a wrong place into the chest. This is leading to recurrence of all the reflux symptoms, heartburn, chest pain, requirement to take anti acid medication. Once the oesogastric junction has slipped into the chest, if there is an obstacle to the oesophageal content emptying, like a wrap around the hiatus, and if this obstacle is exercising its pressure on the stomach instead of the oesophagus, the pressure raises into the oesophagus and leads to the development of this pseudo epigastric diverticulam associated usually with a global dilation of the entire oesophagus like in Sonya's case. In conjunction with this raised pressure, dysphagia is happening because the oesophagus has difficulty in getting its content migrating through the small amount of stomach blocked by the wrap. The pseudo epigastric diverticulam 's just the consequence of this pressure raising due to the wrap located in the wrong position after the oesogastric junction has migrated into the chest." [54] . He stated earlier with regard to the pseudo epigastric diverticulam: "The reason why it appeared following the swimming pool incident is that the esophagus could have been pulled up into the chest at this occasion and the wrap staying in the abdomen, instead of applying pressure on the oesophagus itself, was applying pressure below the oesogastric junction. This situation is similar to what is done for bariatric surgery sometimes, when an inflatable band is wrapped just below the pesogastric junction to create a small proximal gastric cavity which will need to be filled up extensively before being able to empty into the proper stomach. When the pressure is applied circumferentially, it induces dysphagia and makes people lose weight." DECISION [55]. I have read with care the numerous submissions provided to me by the appellant and those provided by the respondent. At the end of the day I consider that the last medical reports provided by Professor Windsor and that of Mr Jauffret provide the answers to this difficult medical problem. In his report dated 28 December 2008 Professor Winsor plainly states: 'On the basis of her symptoms, which have been consistently reported to various doctors, it appears that Mrs Anderson did suffer a physical injury in the pool. The barium studies demonstrate before and after evidence of the re-occurrence of the herniation. This is the injury." 10 [56] The Professor then went on and stated that he was of the opinion that some of her symptoms were likely to be caused by the injury [57] After reading the medical reports of Mr Jauffret the opinion of the Professor is confirmed. After considering all the evidence I reach a view that the appellant suffered a physical injury in the pool and the later effects of her injuries were substantially related to that injury. For those reasons the appeal is allowed and the respondent should now assess what compensation is payable to her. [58] As the appellant appeared for herself she is entitled to reasonable disbursements. DATED this 22" day of January 2010 (J. Cadenhead) District Court Judge 11