Monk v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 46 /2010 IN THE MATTER of the Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTERof an appeal pursuant to Section 149 of the Act BETWEEN STACEY ANN MONK (Al 363/09) Appellant AND THE ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 2 March 2010 APPEARANCES Mr G Martin, Counsel for Appellant. Mr C Hlavac, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal concerns the correctness of the respondent's decision of 4 August 2008, whereby it declined to grant cover to the appellant for a treatment injury claimed to have arisen and been suffered by the appellant on 27 February 2008 [2] The injury sought to be covered is that of conversion disorder claimed to have been brought on as a consequence of trauma experienced by the appellant during the course of a lumbar puncture procedure which she underwent on 27 February 2008. [3] It is the respondent's position that whilst it accepts that neurological investigation has identified that the appellant did suffer from the mental condition known as conversion 2 disorder, nevertheless that condition could not be shown to have been as a consequence of, or caused by, any physical injury, being a treatment injury, suffered by the appellant. .. . . [4] .The background facts relevant to the issue in this appeal are not in dispute and may be stated as follows: At the material time the appellant was aged 22 years. . On 27 February 2008, the appellant experienced the onset of a violent headache, its intensity was such that she was taken by ambulance to Christchurch Hospital's Emergency Department. It is stated that at the time of the onset of this headache the appellant was nevertheless still able to walk normally. . At Christchurch Hospital various tests were carried out, including blood tests and a CT scan, as it was suspected that she may have sustained a subarachnoid haemorrhage. . This condition was ruled out consequent upon the CT scan. . Another possibility was considered to be meningitis and for this reason a lumbar puncture was proposed to obtain a sample of cerebrospinal fluid to test for meningitis. . At about 10.30 p.m. on 27 February 2008 a Dr Hartley commenced the lumbar puncture procedure. . When the needle was inserted in her lumbar spine, the appellant said she experienced severe pain and an electric shock-like sensation down both her legs. . The lumbar puncture procedure was halted and the needle withdrawn. . Dr Hartley then made a second attempt at a lumbar puncture but again was unable to place the needle into the area where the cerebrospinal fluid could be extracted. 3 . After that second failure, no further attempt at lumbar puncture was made at that time. . .. . .... The appellant was given medication and pain relief and moved to a ward. . When she attempted to get up to go to the toilet she found that her legs would not function and she could not move without being supported. . On 28 February 2008 another lumbar puncture procedure was carried out by another doctor and this was successful and the procedure was carried out without any discomfort. . The appellant remained in Christchurch Hospital because she had been unable to walk unaided and was subsequently transferred to Ashburton Hospital on 10 March, being closer to where she and her parents lived. . The appellant continued to experience lack of full control of her legs for some months and required the use of a crutch to aid in walking. . On 4 April 2008 the appellant, through her GP, made application for cover for the injury she suffered, namely the loss of use of her legs, which was claimed to be a treatment injury. . As part of its investigation of the claim the Corporation arranged for a comprehensive neurological assessment from D L Du Plessis, Neurologist. . Dr Du Plessis provided a 17 page report dated 11 July 2008, the bottom line of which advised that there was no evidence that the appellant had suffered a physical injury arising from the lumbar puncture process. . As a consequence of that report the Corporation issued a decision on 4 August 2008 declining the appellant's claim on the basis that there was no evidence of the appellant suffering any physical injury as a consequence of treatment. ... . . 4 . The appellant sought a review and a review hearing took place in June 2009 at which the report of Or Du Plessis was presented and at which the appellant and other members of her family gave evidence. . In his decision dated 20 July 2009, the Reviewer, Mr J Greene, found on the evidence that the appellant had not suffered a personal injury caused by her treatment, and the respondent's decision to decline cover was therefore confirmed. . No further medical evidence has been introduced for the purposes of the appeal. [5] The medical evidence relevant to this appeal has come from many sources, mainly within the hospital system, and all of it was collated and identified by Dr Du Plessis when he carried out his comprehensive neurological assessment of the appellant on 11 July 2008. He interviewed the appellant for the purposes of his report and he had been provided with all the relevant medical information which he identified in his report as "copious in-patient records (these include records from Burwood Rehabilitation Unit)." In the light of that I propose to refer to that medical evidence as it was collated by Dr Du Plessis and referred to and set out in his report. [6] It should be noted that his report was made against a background of neurological and psychiatric assessments of the appellant, principally to try and identify her ongoing problems of headaches and limited walking ability. The appellant had spent some time in the Burwood Rehabilitation Hospital where she received treatment, including physiotherapy treatment. At the time she was interviewed by Dr Du Plessis she was walking with the use of a crutch. She had her left knee in a brace to control the hyper- extension of her left leg. The left leg seems to be the major problem. [7] The points made by Dr Du Plessis of the events as recorded in the hospital records, in his words give a totally different history from that related by the appellant and her parents. The records compiled by the nursing staff at the time of the appellant's admission to Christchurch Hospital on 27 February 2008 were that she was hyperventilating and speaking in short sentences and when she attempted to mobilise to the bathroom she felt dizzy. 5 [8] The note relating to the first lumbar puncture was that the appellant felt sick and was given some anti-nausea medication. The second lumbar puncture was abandoned because it was stated that the patient felt too distressed. [9] The record further shows that the appellant's anxiety and hyperventilation continued next day and she was still complaining of a headache. [10] The notes show that the appellant continued to have mobility problems. A neurological examination on 11 March indicated that the right leg was stronger than the left but left leg weakness was considered minimal and should not have limited her walking. At this time it was also noted that there was no evidence of organic pathology and that the appellant was displaying an atypical presentation. [11] A psychiatric assessment on 25 March 2008 indicated that the appellant had occasional panic attacks and the psychiatrist concluded that there were no significant psychiatric symptoms evident. She was not depressed and there was no depressive history. The psychiatrist wrote: "Impression - medically unexplained symptoms, no obvious psychiatric cause. Appears to be neurologically based.' [12] A neurological examination carried out on 29 March identified no neurological deficit in the lower limbs except minor weakness for plantar flexion of the ankle and knee extension on the left side. [13] After the appellant was transferred to Burwood Hospital her diagnosis of "probable conversion disorder" was made and it was considered that physiotherapy was the best way to treat her. A psychiatric report made by Bronwyn Trewin, Psychologist, of 22 May 2008 stated, inter alia: Current assessment did not identify any preceding psychological stressor for the development of her symptoms apart from the traumatic experience of her first lumbar puncture in the Emergency Department . . . no current major mood, anxiety, psychological or psychiatric dysfunction was elicited." [14] A further comment made was that the appellant's symptoms were non-organic and that there was no evidence of mental disorder, and that her diagnosis was that of a conversion disorder. 6 [15] In presenting his opinion, Dr Du Plessis noted that the MRI scan had identified that the appellant had not suffered a spinal cord injury as a result of the lumbar puncture and he stated: "Clearly there is no organic abnormality in Ms Monk to account for her apparent weakness and the best management would be for the physiotherapist to persist in mobilising Ms Monk knowing that there is no physical abnormality as such and recognising that her symptomatology is the manifestation of a psychological problem in the case of conversion disorder. In the case of malingering this would be to avoid having to return to work, or to achieve some other benefit." Dr Du Plessis went on to state further as follows: "Although I accept that Ms Monk's experience of the lumbar puncture was very traumatic there is no evidence that she suffered a treatment related physical injury; it is however accepted that she may have suffered a psychologically traumatic experience." [16] The Court has also been referred to a report by Dr A D Macleod, Medical Director /Neuropsychiatrist at Burwood Hospital who was involved with the appellant's care at Burwood. His report confirms the diagnosis of ". . . medically unexplained symptoms sometimes referred to as conversion symptoms." His explanation of the conversion disorder was stated as follows: ... Our understanding of conversion symptoms is wanting. They are not entirely psychogenic. They are generally initiated by an organic insult (which is generally transient), the patient acquires or attracts psychological conflicts and issues thereby reinforcing and perpetuating the organic memories and physical dysfunctions. suspect in this case that the procedure was painful, the patient became very anxious and during the course of the procedure experienced "electric shock sensations" down her legs, presumably on the basis of some irritation of her spinal cord. This combination of events is not unusually described in the initiation of conversion symptoms, presuming that no organic damage was consequent upon the lumbar puncture, which was the view point of the Neurologists. That she was able to endure the following morning an uncomplicated lumbar puncture is interesting and might have expected to have ablated some of the memory of the proceeding procedure. However not to be and her symptoms persisted Miss Monk was not attended to by a Psychologist at Christchurch Hospital. More appropriately she was assessed by Psychiatrists. She was assessed by a Clinical Psychologist (J M Yee) at Burwood in addition to myself and we concurred with the conversion diagnosis. With the exception of the lumbar puncture procedure we could identify no major psychological or psychiatric problems. I would agree that she suffered a treatment injury ... . . ........... 7 [17] With that as the medical background, Mr Martin, Counsel for the Appellant, submitted as follows: . . The lumbar puncture procedure did cause a physical injury and the disc protrusions shown in the MRI scan had been caused by that treatment. . The physical injury was the breaking of Ms Monk's skin by spinal needle and then pushing the needle into a nerve rich area of her spine further damaging tissue as the needle progressed. . The effect of this action was to cause extreme pain, discomfort and electric shocks. . On the basis of that evidence the appellant has suffered a personal injury in terms of Section 26(1)(b) being a physical injury suffered by her. . The respondent accepts the diagnosis of conversion disorder which comes within the definition of mental injury and which had been suffered by the appellant as a consequence of the physical injury suffered at the time of the lumbar puncture. . The conversion disorder was the direct outcome of a physical injury. . The personal injury suffered by the appellant was a treatment injury in terms of Section 32 in that the injury was not an ordinary course of the treatment taking into account the circumstances. The evidence of Dr Macleod supports the contention of a treatment injury having been suffered. [18] Mr Hlavac, Counsel for the Respondent, submitted as follows: . The key issue is whether the appellant has suffered a physical injury. . The physical injury which is a treatment injury must be something separate from that caused in the ordinary course of treatment. 8 . The medical evidence is that no physical injury was caused to the appellant by the lumbar puncture procedure and the medical evidence is that the disc prolapses referred to in the MRI scan had not been caused by that procedure. . In the present case the evidence suggests that the appellant's conversion disorder was caused by the trauma of the lumbar puncture procedure, but there is no evidence that the appellant sustained any physical injury caused by that treatment . It is well established that pain does not of itself constitute a physical injury - there must be some underlying recognisably bodily damage if cover is to be available. . The appellant's ongoing problems are not indicative of physical injury. . The report of Dr Macleod, whilst concurring with the diagnosis of medically unexplained symptoms, does not identify any physical injury causative of those symptoms, and which would be necessary to establish a treatment injury. DECISION [19] The appellant seeks cover for a treatment injury, that injury as claimed was the medical condition of conversion disorder which was diagnosed in March 2008 at the time she was a patient at Burwood Hospital. [20] The medical evidence is that conversion disorder is not itself a physical injury but indeed is a mental condition. Dorland's Medical Dictionary, 27" Edition, describes 'conversion disorder' as follows: A mental disorder characterised by conversion symptoms (loss or alteration of physical function suggesting physical illness, usually of the sensorimotor system, such as seizures, paralysis, dyskinesia, anaesthesia,) having no demonstrative physiological se psychological b gical basis is suggested by (1) exacerbation of symptoms at time of psychological stress, (2) relief from tension or inner conflict (primary gain) provided by the symptoms. 9 [21] In the circumstances of that explanation of the medical condition sought to be covered, it requires the appellant, in accordance with the provisions of Section 32 of the Act, to identify a physical injury caused by treatment that has brought about that mental condition, so that it comes within the definition of personal injury contained in Section 26(2)(c), namely "mental injury suffered by a person because of physical injury suffered by the person" [22] Section 32 of the Act which sets out the definition of treatment injury, indicates that the personal injury must be one caused by treatment and "not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment." [23] In terms of that definition I concur with Mr Hlavac's submission that the physical injury required to be established is not intended to include injury to the body caused as a necessary part of the treatment, but rather that the treatment causes a consequent and separate physical injury which is not a necessary part or ordinary consequence of the treatment. [24] In this case, the treatment was the lumbar puncture and whilst it was not successful in that it did not achieve the outcome desired, namely the obtaining of a sample of cerebrospinal fluid, I find that there was nothing out of the ordinary in the way in which that treatment was carried out, and there is no evidence to suggest that Dr Hartley carried out some procedure in the course of the lumbar puncture which was not appropriate for that procedure. [25] It is to be noted that Section 32(4) of the Act specifically identifies that the fact that the treatment did not achieve the desired result does not of itself constitute a treatment injury. In the context of the present case, I find that that provision must apply and therefore an unsuccessful lumbar puncture cannot be considered to be a treatment injury. [26] If it could be established that the lumbar puncture caused some physical injury to the appellant outside the ordinary ambit and consequences of that procedure, then a treatment injury could well be established. [27] In the present case, Counsel for the Appellant has contended that the MRI scan which disclosed disc protrusions at L3/4, L4/5 and L5/S1, had been caused by that lumbar puncture. There is no evidence that those disc protrusions were so caused and indeed the 10 medical evidence from that MRI scan indicates that there was no radicular or spinal cord damage caused by the lumbar puncture and there was no compression on neural structures which could cause the symptoms which the appellant displayed. [28] The specialist medical evidence from the neurologists is to the effect that there is no physiological cause for the conversion disorder which the appellant now displays and that there was nothing untoward about either of the two lumbar puncture procedures carried out by Dr Hartley. [29] Dr Du Plessis recognises that the appellant's mental condition was probably brought on by the trauma that she experienced in the course of that lumbar puncture procedure, but he equally notes that the condition of conversion disorder which she began to display cannot be identified as having been caused by any physical injury at all, let alone a physical injury which would come within the medical definition of treatment injury. [30] I find that the evidence overwhelmingly establishes that there is no physiological basis for the onset or continuation of the appellant's conversion disorder, that she did not suffer a physical injury which could in law be considered a treatment injury, and it is for this reason that cover for her mental condition cannot be had, as it does not meet the statutory criteria necessary. [31] In essence, there has been no physical injury which could be considered a treatment injury, and therefore the requirements of Section 26(1)(c) cannot be met. [32] For the foregoing reasons, therefore, the respondent was correct to determine that the circumstances of the appellant's claim did not allow for cover and her claim was rightfully declined. Accordingly, this appeal is dismissed. DATED this 24 day of March 2010 M J Beattie- District Court Judge