Boulton v Accident Compensation Corporation (Treatment Injury)

IN THE DISTRICT COURT AT DUNEDIN (2018] NZACC 133 ACR 191/17 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN TANIA BOULTON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 17 June 2018 Appearances: S Roebuck advocate for the appellant A Butler for the respondent Judgment: 15 August 2018 RESERVED JUDGMENT OF JUDGE JH WALKER [Treatment Injury s 32 Accident Compensation Act 2001] [1] The appellant in these proceedings is Tania Boulton (the appellant) and the Accident Compensation Corporation (the Corporation) is the respondent. [2] This is an appeal pursuant to s 149 of the Accident Compensation Act 2001 (the Act). These proceedings relate to a decision made by the Corporation with respect to a treatment injury claim on 17 February 2017. [3] The Corporation had earlier issued a decision dated 13 February 2017 when cover was accepted. [4] The decision letter of 17 February 2017 provided a revised and amended decision and accordingly is a fresh decision with review rights. [5] The Corporation determined that the new date of injury was 17 November 2003 based on the information provided and approved cover for the following injury: Atrophy of the right kidney requiring nephrectomy. [6] The decision letter of 17 February 2017 also stated: Your health professional also told us about the following condition(s), which we're unable to cover: . Fibromuscular dysplasia (FMD). The letter referred to the attached treatment injury report. 7] The appellant applied for a review of the Corporation's decision. [8] This review was heard on 12 May 2017 before Reviewer Ms R Posorski. [9] Reviewer Posorski issued a decision dated 1 June 2017 stating: On the balance of probabilities, I am not satisfied that the FMD disease represents a personal injury. The issue whether the severe untreatable hypertension and other symptoms, such as migraines and loss of cognitive functionality, represent personal injuries in the form of a physical condition that was caused by the failure to diagnose and to treat FMD in 2003, would need to be subject to a separate claim. My jurisdiction only extends to ACC's decision to decline cover for the FMD disease 10] Ms Boulton subsequently filed an application dated 20 July 2017 to appeal that review decision. Background [11] I rely particularly on the information contained in the submissions of the respondent as to the background. [12] On 19 September 2003, Ms Boulton, then aged 28 years, was admitted to the Timaru Hospital after suffering, for two weeks, from frontal headaches and neck pain. At that time she was of normal weight and otherwise healthy. [13] Ms Boulton was identified as having a clinical history of hypertension, the attending physician recorded the results of the renal ultrasound as normal. The hypertension did not respond to any treatment and for this reason she was referred in 2003 to a radiologist, to investigate the cause of her high blood pressure. 14] On 20 October 2003 Dr Burton, a consultant physician reported Ms Boulton presenting with severely high blood pressure and noted the investigations for secondary cause of her rising blood pressure had thus far returned normal results. He commented that if the results from Ms Boulton's renal CT scan were negative, he would diagnose her with essential hypertension (or primary hypertension, which by definition has no identifiable cause). [15] On 6 November 2003 Dr Brew, radiologist reviewed Ms Boulton's renal CT scan and observed that it appeared normal and there being no evidence of scarring, other pathology or other abnormality in the renal arteries. [16] On 17 November 2003 Dr Burton ruled out secondary cause hypertension based on the negative results of the special investigations and the normal CT renal angiogram results, diagnosing her with essential hypertension. He noted as set out in the report that over time the blood pressure continued to increase dramatically and she experienced migraines and a loss of cognitive functionality which eventually led to the inability to perform well at work and she ultimately lost her job. [17] Between 2005 and 2016 Ms Boulton regularly saw Dr Hills, a consultant physician at Timaru Hospital. The consultations concerned the management and treatment of hypertension. It was noted that during this time her blood pressure continued to increase and she also continued to experience a large range of symptoms including headaches and paraesthesia (abnormal sensation such as tickling, numbness, burning of person's skin with no apparent physical cause). [18] On 22 February 2016, Ms Boulton was admitted to Timaru Hospital. It was noted in a report from Dr French on her admission "chest pain, numbness in her extremities and extremely high blood pressure". [19] On 19 May 2016, Ms Boulton underwent a CT scan which showed a moderately atrophic right kidney and right renal artery and fibromuscular dysplasia (FMD), a narrowing of the renal artery that reduces the kidney's blood supply due to reduced artery velocity. [20] On 15 June 2016, Dr McGregor, nephrologist, identified retrospectively that FMD had been present in the appellant's CT scan in 2003 and there had been a failure to diagnose FMD. In his report Dr McGregor also recommended nephrectomy of the affected kidney. [21] On 9 September 2016 Dr Allawati, a nephrologist, diagnosed secondary cause hypertension caused by the appellant's FMD. The report noted that failure to treat the FMD in a timely manner had caused her hypertension to become treatment resistant and caused the severe global atrophy of her right kidney. [22] On 13 February 2017, the Corporation accepted that there was a causal link between the failure to correct the diagnosed FMD in 2003 and the appellant's right kidney atrophy (with development of the treatment resistant hypertension (TRH) being the intermediate cause. [23] It was on this basis that the Corporation issued its revised and amended decision for cover for the loss of the right kidney as a treatment injury but excluding cover for FMD and the accompanying conditions. Procedural History [24] On 5 October 2016 Dr Jennifer McGechie, Ms Boulton's GP, lodged an injury claim form on behalf of Ms Boulton for arterial fibromuscular dysplasia leading to the atrophy of the right kidney and the ongoing hypertension for many years. [25] On 14 October 2016 Dr McGechie submitted a treatment injury claim form the injury's claim being FMD of the right renal artery leading to atrophy of the right kidney, the treatment being the failure to correctly diagnose FMD in 2003 (the failure to diagnose) [26] The Corporation issued its decision on 17 February 2017, accepting cover for atrophy of right kidney requiring nephrectomy, but not cover for FMD. [27] As noted the decision of the Corporation of 17 February 2017 was reviewed and in the Reviewer's decision of 1 June 2017 the Reviewer found: The medical evidence did not show that FMD disease and its accompanying symptoms would represent a personal injury. Although the progression of FMD was caused by the failure to diagnose and treat in a timely manner, the FMD disease was the underlying health condition and was not caused by the lack of diagnosis in 2003. [28] It should be noted also that in addition to this appeal, the appellant has lodged applications for review of the Corporation's decisions on three other related claims. These three review hearings have been adjourned pending the outcome of the present appeal. The outstanding applications relate to: [a] A claim for a treatment injury, where the treatment injury is her treatment resistant hypertension and the treatment alleged to have given rise to the injury to failure to diagnose FMD. The Corporation issued a decision declining cover on the basis that hypertension is not an injury; [b] The appellant's entitlement to weekly compensation. The Corporation issued a decision to which it found that the appellant had no eligibility for weekly compensation as she was not employed at the date of her nephrectomy, and further there was no evidence to causally link her incapacity with her covered injury; [c] A claim for mental injury consequent to physical injury. The appellant sought cover for anxiety and depression, allegedly resulting from the discovery of the failure to diagnose FMD and subsequent need for nephrectomy due to right kidney atrophy. The Corporation issued an interim decision declining cover on the basis of insufficient medical evidence, but noted it would continue to assess the claim. The Law [29] The sections of the Act that are relevant to this matter are as follows: Subsection 20(1)(c) requires that the appellant's personal injury be a treatment injury within the legislative meaning of the term. The starting point for cover under the Act is s 20. Subsection 20(1)9c) requires that the appellant's personal injury be a treatment injury within the legislative meaning of the term: 20 Cover for personal injury suffered in New Zealand (except mental injury caused by certain criminal acts or work-related mental injury) (1) A person has cover for a personal injury if - a) he or she suffers the personal injury in New Zealand on or after 1 April 2002; and (b) the personal injury is any of the kinds of injuries described in section 26(1)(a) or (b) or (c) or (e); and (c) the person injury is any of the kinds of injuries described in any of the paragraphs in subsection (2). (2) Subsection (1)(c) applies to - ... (b) personal injury that is treatment injury suffered by the person: The term "personal injury" is defined in s 26. The relevant parts of s 26 are set out below: 26 Personal injury (1) Personal injury means - . . . (b) physical injuries suffered by a person, including, for example, a strain or a sprain; or (2) Personal injury does not include any personal injury wholly or substantially caused by a gradual process, disease, or infection unless it is a personal injury of a kind described in section 20(2)(e)- (h). The term "treatment injury" is defined in s 32. The relevant part of s 32 are set out below: 32 Treatment injury (1) Treatment injury means personal injury that is - (a) suffered by a person - . . (b) caused by treatment; and (c) not a necessary part, or ordinary consequence, of the treatment, taking into account all the circumstances of the treatment, including - (i) the person's underlying health condition at the time of the treatment; and (ii) the clinical knowledge at the time of the treatment. (2) Treatment injury does not include the following parts of personal injury: (a) personal injury that is wholly or substantially caused by a person's underlying health condition. The term "treatment" is further defined in s 33. The relevant parts of the section are as follows: 33 Treatment (1) For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes - (a) the giving of treatment: (b) a diagnosis of a person's medical condition: (c) a decision on the treatment to be provided (including a decision not to provide treatment): (d) a failure to provide treatment, or to provide treatment in a timely manner: [30] Taking these provisions together, in order to obtain cover for a treatment injury, the appellant is required to establish: [a] that there has been a treatment; [b] that the appellant has suffered a personal injury; and [c] that the treatment in question caused the personal injury. [31] Counsel for the appellant filed a bundle of documents, and at the hearing the respondent also produced a bundle of documents (BofD). There is considerable duplication. For ease of identification I will refer to the tabs which were referred to at the hearing from the appellant's bundle. However, it should be noted by the parties that the bundle should be page numbered and paginated for easy reference. [32] On 22 June 2018 a few days before the hearing Ms Roebeck, advocate for the appellant forwarded to the Court additional documentation from the radiologist Dr Bailey, dated 15 January 2018 and a CT scan dated 3 May 2018 with a report from Dr Lange. In addition, there is a report from the Canterbury District Hospital Board dated 19 June 2018 with a further undated report from the South Canterbury District Health Board which attaches a report from Mr Lange, radiologist dated 13 November 2017. [33] It is noted there was a joint memorandum received (and referred to in an email from the Registrar) on 9 April 2018 which states at paragraph 7: As counsel agree that no new evidence is required to be produced before the appeal hearing, can both parties agree to a timetable, when submissions are to be filed and served... [34] Some of the new evidence filed was clearly available, but not filed, prior to this memorandum. This "new evidence" filed only a few days prior to the hearing was without any application for leave made by the appellant. This was noted by Counsel for the Corporation at the hearing. Medical Evidence [35] GP notes and test results covering the period 6 November 2003 to 29 September 2016 from the Timaru Medical Centre are found under TAB 53 of the BofD. [36] It is clear that until 2016 an accurate diagnosis of the appellant's condition was not made, although she had regularly seen Dr Hills, a consulting physician at Timaru Hospital. [37] It is noted that these consultations related to management and treatment of the appellant's hypertension and there was concern about increases in her blood pressure. [38] Ms Boulton was admitted to hospital on 22 February 2016. Dr French provided a report on 22 February 2016 recording the primary diagnosis was hypertension. Ms Boulton had presented with chest pain and over the last ten days had been having issues with high blood pressure. Ms Boulton stated she was having headaches with visual flashing and a tingling sensation in the hands, feet and lips with her blood pressure monitor having her at 200-200/100-140. [39] On 22 February 2016 Ms Boulton developed chest pains, shortness of breath and an ambulance was sent for her. It is noted this is a discharge summary. The next appointment was made with the ECG department for 7 March 2016. [40] Ms Boulton was seen again at outpatients by Dr Hills on 23 March 2016 at which stage her blood pressure readings were still significantly elevated with obvious abnormal systolic readings at the 100-120 range. The notes mentioned that Ms Boulton had had a significant weight loss. [41] Ms Boulton was reviewed again by Dr Hills on 5 May 2016. [42] A CT scan was carried out on 19 May 2016 and a report, received from Dr Balasingam stated that among the findings it was noted (TAB 19): Moderately atrophied left kidney with and irregular beaded right renal artery. Appearances are consistent with fibromuscular dysplasia. [43] It was noted that the left kidney was normal. In his conclusion Dr Balasingam states: No evidence of aortic dissection or other cause for chest pain. Centrilobular emphysema. Is there a history of smoking? Moderately atrophic right kidney with arterial appearance is consistent with right renal artery fibromuscular dysplasia. This is a potential cause for hypertension. [44] When Ms Boulton was next reviewed by Dr Hills on 27 May 2016, he referred to the "important findings from the scan" and in a referral to Renal Physicians at Christchurch Public Hospital, states: We had by exclusion of previous negative investigations assumed this lady had essential hypertension. I believe this now no longer to be the case and would very much appreciate your advice on further management. [45] A report dated 7 June 2016 was obtained from Dr Andrew Laing, Christchurch Radiologist. This states: This case has been listed for review at the Nephrology Urology multidisciplinary meeting. Poorly controlled hypertension. Global severe atrophy of the right kidney. Beaded right renal artery consistent with fibromuscular dysplasia. Pronounced progression of right renal atrophy since 2003. BP control would likely be improved by right renal embolisation or nephrectomy. Normal left kidney. [46] A subsequent report from Dr McGregor, Nephrologist of 15 June 2016 confirmed this and recommended it is likely Ms Boulton would be better off with a nephrectomy as she has significant hypertension and is not particularly compliant with medication. [47] Mr Allawati, Nephrology Registrar, provided a report dated 8 September 2016 to Dr McGechie, Ms Boulton's GP. He reviewed Ms Boulton's history including her admission to hospital in February 2016 when she had daily headaches and had developed intermittent chest pains. He noted Ms Boulton attributed her weight loss of 30 kilos over the last few years to hypertension. She has had three pregnancies, two were at term and delivered with normal foetal sizes. The third child was delivered by caesarean section at 39 weeks and was normal size. Mr Allawati states: Impression: I have explained to her that she has symptomatic renovascular hypertension due to severe right renal artery FMD with probably non-functional right kidney which is likely driving her hypertension. She will likely benefit with either embolisation or nephrectomy which we discussed. .. [48] This led to the application for cover previously referred to, filed on 5 October 2016 by Dr McGechie which stated: Diagnosis 1 - G7681 - Arterial fibromuscular dysplas - Right Injury Comments - (G7681.00) Confirmed Normal scan in 2002 not read correctly and has led to atrophy of R kidney and ongoing hypertension over many years [49] A report from Dr Brew, Urologist of 17 November 2016 states: As requested I have reviewed the images from 2003 for patient Tania Boulton who has subsequently been shown in 2016 to have an atrophic kidney with evidence of fibromuscular dysplasia. In retrospect the 2003 images do demonstrate beading and irregularity of the distal right renal artery and I agree the diagnosis was missed at this time. We now routinely include multiplanar reconstructions in our imaging of this type and this does make it easier to perceive abnormalities. I offer a sincere apology that the diagnosis was not made and would appreciate it if you could pass this on to your client. [50] A further report was obtained from Mr John Irvine, Nephrologist dated 1 December 2016. In respect to the questions, he states: 1. Has the delay in diagnosing Ms Boulton's arterial fibromuscular dysplasia led to a physical injury over and above the natural progression of her disease? Fibromuscular dysplasia is a condition and leads to narrowing of the artery and therefore the kidney will have a reduced/impaired blood flow. This reduced blood flow can result in secondary hypertension and if the narrowing is severe and progressive, then this can result in atrophy of the kidney. Fibromuscular dysplasia can be reduced through radiological intervention and angioplasty of the renal artery. In my opinion a delay in diagnosing and intervening with fibromuscular dysplasia could lead to chronic hypertension and renal atrophy. A delay in diagnosing fibromuscular dysplasia could lead to injury over and above what would be considered an acceptable timely progression of this disease because of the ability to intervene radiologically 2. In your opinion would earlier treatment of Ms Boulton's condition have prevented her from requiring a nephrectomy? It is likely that earlier intervention and continued follow-up (possibly requiring further intervention) is likely to have prevented the development of renal atrophy, subsequent treatment resistant hypertension and therefore the need for a nephrectomy. 3. Does Ms Boulton have any underlying health conditions that may have contributed to her physical injury? This patient has minimal co-morbidities. She is a current smoker (when seen at the Timaru clinic) and has controlled asthma and hayfever. I do not believe that any of these co-morbidities or underlying health condition would have attributed to her renal atrophy, treatment resistant hypertension and need for nephrectomy. [51] A treatment claim for was filed by Dr McGechie dated 14 October 2016 and received by the Corporation on 19 October 2016. [52] The Corporation provided an undated Treatment Injury Cover Decision Tool document. Part of that document refers to a report from Dr David Milne, Radiologist and states: Dr Milne states no radiologist identified FMD in the right renal artery [relying on the 2003 renal CT scan] and doubts that he could have made the diagnosis without the prior knowledge of the proven diagnosis of FMD. Dr Milne goes on to say that as Ms Boulton is under 55 years of age this should alert the sonographer to also include a renal artery Doppler prior to the renal CT scan. This examination is routine for this age group and will assess the velocity of the blood in vessels, a test which is ideal for identifying stenosis in arteries. Dr Milne said the renal artery Doppler examination would have likely identified the right renal artery stenosis at this time had it been performed. Dr Milne said "Having made the decision to examine the renal arteries with CT, it would be my expectation that multiplanar reformats of the renal arteries would be presented for review to the radiologist as these would be a significant aid to complete examination of these structures and increased the sensitivity of the study to detection of renal artery stenosis". The failure is in not performing a renal artery Doppler examination at the time of the renal CT scan on 06/11/2003 whereby not enabling the radiologists to do a complete examination of the renal arteries and so missing Ms Boulton's right renal artery stenosis which has caused her to develop atrophy of the right kidney. [53] This matter was subsequently referred to the Complex Claims Panel. They issued a report dated 9 February 2017. [54] The Panel reviewed the information and their conclusion states: Consensus of panel is to have regard to the radiology advice about a Doppler scan being done when looking for a renal origin of hypertension. There was arterial fibromuscular dysplasia R) kidney in 2003; the dysplasia is the underlying health condition. However, the undiagnosed and untreated dysplasias has meant the R) kidney suffered irreversible damage over time to the point of atrophy requiring a nephrectomy. [55] A further undated Treatment Report was issued by the Corporation which approved the treatment in respect of the atrophy of the left kidney. In respect of the claim for cover for fibromuscular dysplasia, the Corporation stated: The following injury or condition is not related to treatment: Fibromuscular dysplasia (FMD) This is because: the treatment you received did not directly cause the injury or condition as this is your underlying health condition. 56] The revised and amended decision was issued on 17 February 2017. (57] This matter became the subject of a review which took place on 12 May 2017. [58] The Reviewer looked at the reports from Dr Irvine and Dr Milne in particular. The issue of whether the Corporation correctly declined cover for fibromuscular dysplasia is addressed under the heading "Personal injury or Underlying health condition". [59] The Reviewer referred to the fact that the medical evidence showed unequivocally that FMD disease was present in 2003 when Ms Boulton was referred to a urologist to investigate the cause of the treatment resistant hypertension. She states: ... The medical specialists noted that this circumstance was a clear indicator for the presence of FMD and confirmed that the hypertension is secondary to FMD and not a case of essential hypertension, which would have been manageable with medication. [60] As to whether the progression of the undiagnosed FMD disease represented a personal injury she referred to Dr Irvine especially noting that early detection and treatment probably would have prevented the development of the renal atrophy and the development of hypertension, including all effects such as migraines and loss of functionality. She states: So the medical evidence showed that the progression of FMD caused symptoms that would not have occurred if the disease had been detected in time. Dr Irvine and Dr Milne found that FMD was detectable at the time in 2003 and no other risk factors could possibly have attributed to the development of extremely high blood pressure. The detrimental effects on Ms Boulton's health therefore mean that her health deteriorated as a result of the undetected underlying FMD. [61] The Reviewer refers to the decision of ACC v Stanley' where the courts found that the progression of an undetected disease itself represented a personal injury. However, the Reviewer states: ... In Ms Boulton's circumstances, the FMD disease manifested in the loss of her kidney, for which ACC provided cover. [62] The Reviewer continues: In the case of ACC v Stanley mentioned above, Heath J found that - Prima facie, the exacerbated personal injury was caused by the delay in referring Mr Stanley to an orthopaedic surgeon. That amounted to a failure to treat in a timely manner. A treatment injury can arise from a failure to provide treatment in a timely manner but does not include a personal injury that is wholly or substantially caused by an underlying condition. Unless the exacerbated personal injury was wholly or substantially caused by Mr Stanley's underlying health condition he is entitled to cover. The breadth of the definition of "personal injury" was considered by the Supreme Court in Allenby v H [2012] 3 NZLR 425 (SC). All members of [2013] NZHC 2767. the Court agreed that where the purpose of medical treatment was to prevent pregnancy, and by reason of medical error that purpose was not achieved, the pregnancy occurred because of the medical error. That provided cover under s 20(2)(b) of the Act. In another case, the case of Wilson [2003] NZACC 102, the Court found that: Personal injury can include the progression of a disease to a stage that it would not have reached had the condition been diagnosed and proper treatment been given. What has to be proven is the failure of a doctor to observe a standard of care and skill reasonably expected in the circumstances. The personal injury is the appellant's physical condition arising from this type of breach. In the case of Wilson, the Court said that the 'personal injury is the physical condition arising from the failure to apply the standard of care and skill', referring to the development of a tumour. The cases above demonstrate that the courts found a condition, and a progressing disease only to be a personal injury where the progressing disease resulted in physical damage. The FMD's symptoms, such as the treatment resistant high blood pressure, do not represent a physical damage and therefore do not qualify as a personal injury. The symptoms caused a physical injury over the course of time, namely the loss of the kidney. The medical evidence did not show that the FMD disease and its accompanying symptoms would represent a personal injury. Although the progression of the FMD was caused by the failure to diagnose and to treat in a timely manner, the FMD disease was the underlying health condition and was not caused by the failure to diagnose and to treat in a timely manner, the FMD disease was the underlying health condition and was not caused by the lack of diagnosis in 2003. Subsequent Medical Evidence [63] Subsequent to the review hearing a further report was obtained from Dr Nichola Hay by the Corporation. Dr Hay is a renal physician who refers to the case notes which indicate the hypertension was first diagnosed and treatment commenced in 2003. She refers to the Nephrology Registrar's letter of 8 September 2016 which refers to the three pregnancies and only the final pregnancy was associated with hypertension. Dr Hay states: Ms Boulton is fortunate to have escaped other physical injuries from her severe treatment-resistant hypertension during the 13 year period (2003-2016) when she was denied appropriate radiological intervention to her potentially salvageable right kidney ... [64] She also refers to the letter on the file from consultant Dr Hills of 25 July 2017. Dr Hay states: ... I agree with the points he has made. Although I am unable to identify any new physical injury I would like to emphasise that she is now at substantially increased risk for cardiovascular events now and in the future as a direct consequence of her severe hypertension. If her fibromuscular dysplasia had been correctly identified by the radiologist in 2003 then this would have provided an opportunity for early intervention via renal artery angioplasty (the treatment of choice) and could have allowed preservation of her right kidney and potentially minimise or even eliminated the requirement for life long anti- hypertension medication. ... She is also exposed to potential adverse effects from multiple medications now and in the future, and has demonstrated a general intolerance to medications historically. In addition, there is the emotional trauma associated with delayed-misdiagnosis, loss of an organ, and uncertainty regarding future health - all of which is difficult to quantify. [65] Dr Hills also provided a report dated 2 January 2018 to Ms Roebeck, Ms Boulton's advocate. He states: Regarding point one, it is highly likely had Mrs Boulton's fibromuscular dysplasia and renal artery stenosis been diagnosed and managed at the time of the original CT angiogram dated 2003, she would not have been subsequently exposed, at a young age, to significant hypertension. I believe people are confusing the common risk factor of hypertension throughout the population, referred to as Essential Hypertension that generally occurs in a significantly older age, with the hypertension Mrs Boulton has, which is referred to as Secondary Hypertension and is relatively rare. I have little doubt there is already end organ damage related to this, but at this stage it is not possible to diagnose these changes other than by inappropriate, unethical, invasive means. If one was to biopsy certain tissues one would find premature damage of the coronary, retinal and renal vascular ... There is every reason to believe, that this premature exposure to hypertension, through the development of a rare cause of hypertension, misdiagnosed and not effectively treated, has, and is causing damage. . . . With respect to question 3 I would argue that the ACC has not fully accepted cover for atrophy of the right kidney due to the delayed diagnosis and had become confused with respect to what is happening. The nephrectomy is but part of the consequences of the problem, and the atrophic kidney is not the actual problem, but a consequence of the misdiagnose of the problem, the renal artery stenosis ... What also has to be remembered is this kidney would not have been lost, had her diagnosis been made in 2003 and would still be functional. [66] The medical evidence provided prior to this hearing from Ms Roebeck included a report from Dr Bailey, radiologist, dated 15 January 2018. The conclusion of this states: Findings support the diagnosis of FMD with the ICAs bilaterally at the level of C2 and probably also within the vertebral arteries at the same level. No significant stenosis identified however in FMID CT may not be accurate. [67] There appears to be another CT ordered by Dr Hills and a report from radiologist Dr Laing of 3 May 2018. Comment on this states: Development of mild narrowing and irregularity of left renal artery consistent with fibromuscular dysplasia Development of mild narrowing of the proximal SMA, in the clinical context also most likely due to fibromuscular dysplasia. [68] There is an Amended report of 13 November 2017 to Dr Hills from Dr Laing. The comment on this states: ADDENDUM: As requested I have reviewed Tania's MRI/MRA looking for evidence of fibromuscular dysplasia. Time-of-flight MR angiography from aortic arch to circle of Willis. Mild tortuosity in both upper cervical internal carotid arteries. Internal carotid artery lumens are mildly irregular through the regions of tortuosity, potentially artefact related to in-slice flow, or due to arterial irregularity secondary to fibromuscular dysplasia. No intracranial arterial stenoses or aneurysms identified. Relatively large posterior communicating bilaterally with corresponding relatively small Pl posterior cerebral artery segments, normal variant COMMENT: MRI COW AND CAROTIDS MRA: 24/01/2017 Reference: 12869792 Mild tortuosity of cervical segment of internal carotids. Irregularity of internal carotid lumen through the tortuous segments may be due to imaging artefact. Fibromuscular dysplasia is not excluded. is is a common site for fibromuscular dysplasia. If there is an ongoing clinical concern, a CT angiogram is suggested. [69] Finally, there is a further letter from Dr Hills dated 19 July 2018 which answers questions sought by Ms Roebeck. The questions and answers are as follows: 1) In your 201 1 report (which was prior to the FMD diagnosis being made0 you commented that there was no other known injury. We understand that Tania has had a TIA (transient ischaemia attack). Would you consider that this is further evidence for TRH (Treatment resistant Hypertension) causing damage to the vascular system and causing an identifiable injury? If Tania has had a TIA, this is premature with respect to age and should be considered evidence of premature hypertensive changes. b) Are you able to state with any certainty that there is and will be further damage due to the delay in treatment and development of TRH and what that damage is? Is the TIA such an injury? Statistically given the lateness of this lady's intervention, treatment resistant hypertension is likely to remain permanently and there is a high statistical probability she will suffer from other hypertension related cardiovascular damage. c) Can you specify what damage has been caused by the TRH and are you able to point to evidence of this now If it is all probable but not able to be seen: how sure can you be that it exists? (e.g. a percentage of likelihood?) There is thankfully no overt evidence, but it is highly probable there is premature aging of the cardiovascular system. However the invasive nature of any biopsy sampling etc, is not ethically appropriate to prove it. d) You previously stated in 2012 (prior to the FMD diagnosis) that you didn't think Tania was suffering from any health issues apart from her hypertension. Could you please clarify, is TRH or hypertension in general considered a 'stand alone" diagnosis? The problem here is how one records Tania's problems. The problem list should occur in a serial manner starting with fibromuscular dysplasia, followed by fibromuscular dysplasia affecting the right renal artery, hypertension secondary to right renal arterial artery stenosis, right kidney failure secondary to right renal artery stenosis, hypertension secondary to prolonged exposure to right renal artery stenosis, right nephrectomy, treatment resistant hypertension secondary to all former problems. To reiterate again Tania does not have essential (stand alone) hypertension, but hypertension secondary to other cause as detailed above. Your report dated 23/3/2016 speaks of Tania having an echocardiogram which is relatively normal, but is consistent with her tendency towards hypertension. Is this referring to the left ventricular hypertrophy? And if so, do you consider that this, coupled with Dr Attawati's comments would make it probable that LVH is due to TRH over many years therefore is evidence of end organ damage? The 2D echocardiogram is consistent with hypertension related left ventricular hypertrophy, that would not normally be expected with a person of this age. f) Would you please provide some comment around whether the damage you refer to, including TRH, is responsible for symptoms e.g. headaches that would cause incapacity from employment? Also, would the high doses of medications needed to treat TRH cause side effects causing Tania to be unwell and unable to work at times? It is highly probable that Tania's mental wellbeing has been adversely affected by the sequence of events over the last many years. How each person is affected is highly individualised, but there is nothing inconsistent between the medical problems that have occurred and her present psychosocial circumstances/stress. 8) Tania has indicated that she has had some recent scans, are you able to confirm that these scan show evidence of damage caused Tania's recent scans unfortunately show narrowing in the renal artery supplying blood to her remaining kidney. Tania is at real risk of premature kidney failure and requirement for dialysis. There is unequivocal evidence of loss of quality of life with renal failure, irrespective of dialysis. The Position of the Appellant 70] In her written submissions, Ms Roebeck, Advocate, refers to a number of decisions. She refers to the decision of Lewes v ACC,2 which, at paragraph 20, states: The conceptual problem in such an appeal is whether to regard each increment of progression of a disease as an element of damage or injury. I respectfully agree with the approach taken by Judge Beattie in the cases of Estate of Veysey and Luke (above) to the effect that an injury occurs when the disease progresses beyond the stage at which treatment would have been effective. When a disease changes from a curable condition to an incurable condition there is without doubt an injury. There may also be an injury when a disease progresses to a [2006] NZACC 221 (14 September 2006). stage at which treatment could have significantly less effect against the progress of the disease. Such a degree of change must depend on the evidence and circumstances of each case. [71] Ms Roebeck comments: That is the case with this Appellant with her hypertension being very difficult to manage due to the delay in diagnosis and treatment. The unmanageable hypertension has gone on to cause further damage as opined by medical experts. [72] She also refers to the High Court decision of ACC v Stanley, 3 which states: [43] Judge Joyce found that the worsening of Mr Stanley's condition between the MRI scan in April 2008 and the time at which his condition was alleviated by surgery, in July 2009, amounted to a "personal injury". For convenience, I refer to this as the exacerbated personal injury. [44] The reports before the Court were far from unanimous on whether Mr Stanley had suffered a "personal injury". However, in my view, Judge Joyce was entitled to act on evidence from two orthopaedic surgeons, Mr Ratihi and Mr Taine. [46] In this case, there was sufficient evidence for Judge Joyce to conclude that there was a personal injury that fell within s 26(2) and s 20(2)(f) of the Act. I have already identified the evidence to demonstrate the exacerbated personal injury did occur. Prima facie, the exacerbated personal injury was caused by the delay in referring Mr Stanley to an orthopaedic surgeon. That amounted to a failure to treat in a timely manner. [73] Ms Roebeck also refers, at 2.3 of her submissions, to the decision of Wilson . She states: Wilson confirms that personal injury can include the progression of a disease to a stage where it would not have reached had the condition been diagnosed and proper treatment given. [74] Ms Roebeck suggests there is similarity in the present case. [75] She also attributes the same outcome as in the decision of Versey," and refers to the decision of ACC v Ambros which states: CIV 2013-488-206; [2013] NZHC 2765. (102/2005). (175/2005). 2007] NZCA 304; [2008] 1 NZLR 240. [70] The generous and unniggardly approach referred to in Harrild may, however, support the drawing of robust inferences in individual cases. It must, however, always be borne in mind that there must be sufficient material pointing to proof of causation on the balance of probabilities for a court to draw even a robust inference of causation. Risk of causation does not suffice. [76] Ms Roebeck submits that there is sufficient evidence of a robust inference of causation in these proceedings. [77] In her submissions in chief, Ms Roebeck states that given the full and complex information Ms Boulton provided, the Corporation has taken a narrow view of the claim lodged for cover and as a result the jurisdiction of the Reviewer is subsequently narrowed. [78] She submits of the two matters to be addressed through the appeal process, neither was addressed by the ACC's decision nor the review decision. She states: Firstly in considering the objective injuries caused by the failure to diagnose the FMD - and subsequently the FMD not being appropriately treated or managed, the Reviewer and the Corporation have failed to acknowledge the inherent and irreversible damage that will undoubtedly be present in Mrs Boulton's organs and vascular system. [79] Ms Roebuck also states that it is incongruous to believe that there is no damage to Ms Boulton's body other than the atrophied right kidney resulting from the unmanageable high blood pressure which was caused by the undiagnosed and therefore untreated FMD. She refers to the fact that early diagnosis would have served to limit the damage and potential negative health effects on the individual. She refers to the fact that the treatment providers indicate that FMD has caused and will continue to cause damage and negative health impacts for Ms Boulton. [80] Ms Roebuck submits that the damage to diagnose and treat Ms Boulton's FMD has resulted in much more damage and physiological change than was remedied by the removal of the single kidney. Counsel states: There is expert opinion stating that the uncontrolled hypertension is another, as if treated at the time, it would not have reached the state it is now i.e. unable to be controlled adequately and going on to cause further damage. [81] Ms Roebeck referred to Dr Matthew Hills' statement: I have little doubt that there is already end organ damage related to this, but at this stage it is not possible to diagnose these changes other than by inappropriate, unethical, invasive means. [82] She submits this has led to a "unacceptable progression of the disease with health issues stemming from this", appearing as symptoms and signs of complications and therefore damage. [83] Ms Roebeck further submits that the Corporation has considered and issued a cover decision relating to the atrophy of the right kidney but it neglected to consider and issue on "ongoing hypertension over many years". This appears on the same section of the ACC45 form. [84] She submits that ACC are unable to be selective regarding which injuries are provided with a cover decision and those which are not, if they all appeared in the ACC45 form. She concludes: Consequently, we submit section 57 of the Act has not been adhered to and Ms Boulton has the benefit of a deemed cover decision pursuant with section 58, granting her cover for ongoing hypertension over many years. The Position for the Respondent [85] Counsel has provided written submissions and also made oral submissions at the hearing. [86] Counsel states that the Corporation acknowledges the failure of Dr Burton to detect that Ms Boulton had FMD when she was examined in 2003 and thus was a failure to treat. In turn, the missed diagnosis meant that her pre-existing condition - FMD, went untreated. [87] Counsel refer to the five possible injuries which Ms Boulton had suggested would qualify as a personal injury: [a] The underlying FMD, which is a diagnosed injury of the appellant's ACC45 form; [b] The untreated FMD, allegedly causing current and future bodily damage; [c] The TRH, alleged to have given rise to "side effects ... causing their own issues"; [d] The so called "end damage" to the appellant's organs; and [e] Various "side effects" and health issues "appearing as symptoms and signs of complications". [88] Counsel cites a decision of Atkins v Accident Rehabilitation Compensation and Insurance Corporation'. He asserts that the onus is on the appellant to demonstrate to the standard of the balance of probabilities she suffered a personal injury caused by the treatment. [89] Counsel submits at paragraph 6.4, that the Corporation accepts that the appeal is sufficiently wide in scope for this Court to also have jurisdiction to determine whether any of the conditions in [b]-[e] above represent personal injuries in the form of a personal injury that was caused by the failure to diagnose and treat in 2003. The Corporation respectfully submits that the Reviewer erred in considering that her jurisdiction was limited and that she was unable to consider these issues in the scope of her review. [90] It is accepted that Ms Boulton lodged an ACC45 seeking cover for a treatment injury in respect to her FMD. It is noted however in the decision letter of the Corporation dated 17 February 2017 that the Corporation provided a reason for declining cover that being: [2002] 1 NZLR 374 (CA). FMD was an underlying health condition therefore FMD and its symptoms do not represent a personal injury [91] Rather, Counsel states the Corporation is of the view that FMD was an underlying health condition (notes in the Treatment Injury Report Tool - Tab 5). [92] The Corporation's report goes through the steps which are relied on by the Corporation commencing with Dr Marcel Brews who reported on the renal CT scan of 6 November 2003 and reviewed the images from 2003. Dr Brews acknowledged there were irregularities of the right renal artery that were missed in 2003. [93] The Corporation also refer to the report from Dr John Irvine and the independent radiologist Dr John Milne in respect to the assessment of claim. Counsel notes: ACC requested Dr Milne to conduct a "blind review". to do this he sent the radiological findings from the 2003 renal CT scan to four other radiologists to review not knowing the subsequent diagnosis of Mrs Boulton. Dr Milne states no radiologist identified FMD in the right renal artery and doubts that he could have made the diagnosis without the prior knowledge of the proven diagnosis of FMD Dr Milne's report states that in retrospect there was subtle beading of the distal third of the right renal artery which would be consistent with FMD. [94] Page 3 of that Treatment Report concludes the condition is not related to treatment (see para [55 ] above. [95] Counsel refers at paragraph 6.6 of his submissions to s 32(2)(a) of the Act which excludes from the definition of "treatment injury" any "personal injury that is wholly or substantially caused by the person's underlying health condition". [96] Counsel states: The claimant has not brought evidence establishing that her FMD was caused by a failure to diagnose in 2003. To the contrary, the evidence shows that the appellant was suffering from FMD prior to 2003. [97] Counsel refers to the report of Dr McGregor of 15 June 2016. [98] Counsel also states in the written submissions: 6.7 The medical record does not prove, on the balance of probabilities, a causal link between the [appellant's] underlying condition of FMD and the failure to treat. There is no evidence before the Court to show that treatment would have cured her FMD. The appellant's FMD is a pre- existing underlying health condition, hence the continuing suffering of FMD is wholly caused by the underlying condition. [99] Counsel also deal with matters under the heading "Untreated FMD allegedly causing current and future bodily harm". [100] Counsel states: 6.10 It is not contested that if a medical condition goes untreated due to a delay in diagnosis, a treatment injury can occur ... [101] Counsel also refers to the cases of Stanley and Lewes cited by the advocate. [102] Counsel goes on to state: However, a failure to treat on its own is not enough to amount to a treatment injury. Rather a appellant is required to show that the delay in diagnosis has caused the disease to progress to a stage such that: i) It has actually resulted in a manifest injury. Not merely as an increased risk of injury, and (ii) Timely treatment would have been effective against the realisation of the physical injury. [103] In footnotes, Counsel refers to the fact that in the Stanley decision the appellant suffered a physical injury as a result of a delay in diagnosis, being a fusion of his spinal vertebrae and prolapse of his spinal discs. Counsel also refers to the situation of Lewes v ACC where the appellant was not awarded cover for the delay in diagnosis as she was not able to demonstrate that timely treatment would have been significantly more effective in changing the outcome, that is, more effective against the realisation of physical injury. [104] Counsel also refers to the Court of Appeal decision of Ambros, and that when recalling an earlier decision of its own, which held: In order for the untreated FMD to amount to a personal injury the claimant must demonstrate that the lack of timely diagnosis and/or treatment has caused her a 'realised" injury. [105] Counsel refers to paragraph [46] of the Ambros decision: ... [The loss of chance analysis seems to us to be incompatible with the accident compensation regime. Under a no-fault regime, either there is cover or there is not. There is no ability to discount compensation ... any risk must be realised in the occurrence of a personal injury and the personal injury must be proved to have been caused by the risk factor involved. In keeping with this principle, if the omission to treat causes an identifiable added injury, cover would be available for that injury. [106] Counsel also discussed the matters under the heading "Opportunity for effective treatment against injury". [107] In his submissions, it is stated: 6.13 ACC accepts that the medical records show that timely diagnosis and treatment of the FMD could have prevented the development of treatment resistant hypertension, and subsequently of renal atrophy and the need for a nephrectomy. [108] Counsel refers to the report of Dr Irvine of 1 December 2016 in this respect. [109] He notes the Corporation accepts that the renal atrophy and nephrectomy are personal injuries, and has granted cover in respect to those. Counsel continues: 6.14 ... It therefore submits that it has already provided cover in respect of the injuries resulting from the untreated FMD and lost opportunity to provide effective treatment, caused by the failure to diagnosis. 6.15 ACC further submits that for the reasons discussed below it is unable to provide cover for the untreated FMD per se, separate from the covered injury, as the untreated injury itself has not caused bodily damage or harm to the claimant. [1 10] Under the heading "Physical harm or damage" counsel submits that to attract cover for a progressing disease, a appellant must show that the disease constituted a physiological or bodily injury and that this damage has resulted from the delay in diagnosis e.g. the decision of Stanley already referred to. Counsel refers to the decision of Robinson v ACC where Goddard J in the High Court when considering cover for a progressed disease noted that: [They] could give rise to physical injuries by reference to the damage they inflict on the body and could therefore be covered. [111] Counsel refers to the decision of Ridealgh v Accident Compensation Corporation where Mclean DCJ considered the judicial treatment of progressed diseases in Stanley and Robinson. [1 12] He notes His Honour distinguished Stanley on the grounds that there was already an established physical injury in Stanley whereas no actual injury in the case before him. [113] Counsel submits: 6.19 The correct approach for determining whether a condition qualifies as a personal injury is one that looks at actual physical impact on the claimant. ACC submits that this approach is consistent with case law. It is well established that the term "physical injury" imports a requirement of significant physiological impact. [1 14] Counsel refers to a number of cases in that respect including Teen v ACCI in which it was held there must be proof of physical injury, that is actual damage to the body. Also, the decision of ACC v Studman" in which it was held that physical injury requires some bodily harm. [115] He notes the term has also been considered as stated in paragraph 2.16 by the Supreme Court in the case of Allenby v H2. The Supreme Court considered in Allenby the proper scope of the term "personal injury" within the meaning of s 26 of the Act and concluded that pregnancy constituted physical injury, the Court found, inter alia that: [2014] NZHC 762 at paragraph [8]. 5 6 00 [2015] NZACC 258. DC Wellington, 244-2002, 3 September 2002. [2013] NZHC 2598 [2013] NZAR 1349 at paragraph [26]. 12 [2012] NZSC 33, [2012] 3 NZLR 428. [a] The "profound impact on the physiology of the woman" means impregnation is seen as a physical injury; [b] It involves "physical impacts that are more than merely transitory"; and [c] It causes significant physical changes to the woman's anatomy. [116] Counsel states: 6.21 This decision in Allenby does not change the settled position, but rather affirmed that the threshold is determined by reference to the nature/degree of the impact of the claimed injury as a matter of physiology. Mere symptoms and cell abnormalities are not "physical injury" for the purposes of the Act. The physical injury claimed to have arisen from the untreated FMD would be the cell abnormalities in the claimant's arterial wall that would not have occurred "but for" the failure to diagnose. The expect evidence from the two radiologists does not portray these changes as significant in degree. Dr Milne describes a "subtle beading of distal third of the right renal artery" and Dr Balasingham identifies an "irregular beaded right renal artery". . . . 6.24 ACC submits that, in so far the untreated FMD constitutes an impact of a physical nature, that impact is negligible and is not, in its nature comparable to a strain or sprain ... 6.25 In short, physical injury requires tissue damage or bodily harm. Mere physiological change at a granular level is not a physical injury. The claimant has not demonstrated, on the balance of probabilities, that the untreated FMD has given rise to cell abnormalities that represent physiological harm, nor has it caused her bodily damage beyond the already covered injury of her atrophic right kidney requiring nephrectomy. [117] Under the heading "Ongoing hypertension" Counsel refers to the appellant alternatively claiming that her TRH qualifies as a personal treatment injury. Again, the submission is made that TRH is not a physical harm caused by delay in correctly diagnosing that she had FMD. He states: 5.28 ... The medical position is that hypertension is merely a functional description of the force of blood pushing against the walls of blood vessels, it does not define any tissue damage or injury. It may cause physical damage or injury, but it is not of itself an injury". [1 18] It is noted in the footnote that it is accepted that the TRH is the intermediary cause of the appellant's right kidney atrophy for which ACC has granted cover. [119] Counsel also refers to Dr Hay's report who comments "there are no identified physical injuries other than to the right kidney". [120] Counsel goes on to state that Dr Hay is "unable to identify any new physical injury" [121] He does note that Ms Boulton is at increased risk of cardiovascular events as a result of TRH. [122] As commented by Counsel at the hearing, if an injury arises in the future as a result of this condition Ms Boulton would be able to apply for fresh cover. At the present time however, it cannot be said that TRH has caused physical injury over and above her already covered injury. [123] Counsel also deals with End Organ Damage claim which is also sought by Ms Boulton. [124] Counsel states: 6.34 Contrary to the assertion in the claimant's submissions, ACC submits that the medical record does not prove, on the balance of probabilities, that the claimant has suffered from "end organ damage". 6.35 The claimant's submissions allege that there is "evidence of LVH (left ventricular hypertrophy) which has also been caused by unmanageable hypertension. A direct result of the failure to diagnose and treat the FMD". This evidence is attributed to a report of Dr Allawati from 8 September 2016. 6.36 It is ACC's submission that the advocate has mischaracterised the thrust of that report. In his report, Dr Allawati merely records a diagnosis of a "mildly dilated left ventricle with low normal LV diastolic function with no evidence of diastolic dysfunction but upper level of LV wall thickness". He does not comment on the possible cause of this, let alone go as far as to identify the causal nexus between the claimant's FMD and changes in her ventricular function. 6.37 The claimant also relies on the report by Dr Hills in which he opines that it is "highly likely" the claimant has suffered the following damage: premature damage of the coronary, retinal and renal vascular damage, mature left ventricular hypertrophy; arterial changes within the brain and peripheral vascular system, particularly the legs. [125] Counsel states that Dr Hills' opinion is speculative only and based on his professional knowledge. [126] Counsel notes that Dr Hills states: "... at this stage it is not possible to diagnose [the end organ damage] ... other than by inappropriate, unethical, invasive means". [127] Counsel goes on to note no tests have been undertaken which point to such damage having actually occurred. This assessment of the appellant's organ proceeds in the absence of any clinical manifestation. [128] Counsel continues: 6.39 Notably, in 2011, Dr Hills considered that "there [was] no identified end organ damage related to her hypertension" [129] This lack of organ damage is also reported on by Dr Allawati and Dr Hay. [130] Counsel states: 5.40 On the issue of whether a suspected injury is sufficient to attract cover, in Selwood, Mclean DCJ considered that a suspected injury would not satisfy the requirements for cover on the basis that it was not sustainable to grant cover and then wait until harm can be established: 13 The whole rationale of the treatment injury framework is that a causative "injury" has to be established, not some sort of provisional or suspected injury. . .. 6.43 To be clear, ACC's position does not preclude the claimant lodging a claim with ACC in the future if she or her medical advisors can identify some tangible end organ damage that has actually occurred, and establish that it has been caused by the failure to treat FMD in a timely manner [131] Under the heading Signs and Symptoms Counsel states: 6.45: The fifth possible physical condition raised by the claimant is her "bodily damage" and "adverse health effects ... exhibited by signs and 13 Selwood v Accident Compensation Corporation [2016] NZACC 607 at [94] symptoms". However, the claimant does not go beyond these assertions to point to specific instances of physical harm or damage in her submissions. 6.46 The medical reports from treating clinicians since 2003 record that the claimant has suffered from ongoing headaches and paraesthesia in her extremities. The claimant has not brought evidence to show that the paraesthesia has resulted in tissue damage or bodily harm. It follows that paraesthesia is not an injury from which cover can flow. 6.47 It is well established that symptoms (including headaches) are not "physical injury" for the purpose of the Act. They are manifestations only, which does not represent the evidence of physiological damage, and therefore do not qualify as personal injury. [132] Counsel refers to ACC v Studman and Ridealgh v ACC. Counsel notes: 6.49 On 15 June 2012, Dr Hills opined "she has not suffered from any health issues which would suggest hypertension complications". On 30 October 2014, he noted "she is nonetheless suffering from chronic daily headache [sic], which I think is unlikely to be related to her current blood pressure readings". On 23 March 2016, commenting on the claimant's chronic headaches, Dr Hill again observed that he was "not convinced [they were ] related to her high blood pressure. 6.50 ACC submits that the claimant has not discharged the evidential burden of establishing that: (i) the asserted negative health consequences constitute physical injuries; nor (ii) that these consequences were caused by her TRH. In the absence of evidence that these conditions represent personal injuries that are physical injuries within the meaning in s 26 of the Act, no cover can flow from them. [133] In Conclusion Counsel submits that Ms Boulton already has cover for a treatment injury being the atrophy and subsequent loss of her right kidney. The position is that there is no "realised" or identified injuries in addition to her covered injury. He states: 7.1 ... However, if in the future the failure to diagnose manifested in identifiable physical injuries, ACC would consider whether cover could be granted in respect of these. [134] The position of the Corporation is that the Court should dismiss this appeal and upheld the ACC's decision to decline cover for treatment injury. Discussion and Conclusion [135] The additional evidence furnished by the advocate for Ms Boulton out of time has not significantly changed the landscape. Dr Hills' last report of 19 June 2018 does not provide any evidence of any physical injury as required in terms of the Act to establish cover. [136] Dr Hills has provided an opinion relating to the comments from the last scan. Unfortunately, given that the advocate did not see fit to supply this information until a few days before the hearing, the Corporation did not have the opportunity to provide any medical response to these comments. However this cannot be relied on alone to suggest there is a "likelihood" of further injury. [137] Ms Boulton's experience has been extremely unfortunate, in the respect the information relating to her left kidney was not identified in 2003. [138] However, it is clear also from the information contained in the Treatment Injury Report (TAB 5), there may have been a difficulty in identifying the diagnosis. It is Dr Milne's position that the proper procedure, given her age, should have been to alert the sonographer and also include a renal artery Doppler prior to the renal CT scan. This, in fact, he identifies as being the failure to treat. [139] It is unfortunate also that in the period from 2003, although Ms Boulton had considerable medical intervention, including from Dr Hills, that it was not until the CT scan of 19 May 2016 her condition became apparent. It is accepted that she has had a long period of time to cope with her condition and that earlier intervention would certainly have assisted. [140] Cover was granted for the left kidney. This was appropriate. This appeal however deals with the additional claim progressed by Ms Boulton through her advocate. 141] In respect to the injury claim filed on 5 October 2016 the Corporation accepted cover in their amended letter dated 17 February 2016 in respect to the injury set out in the claim of the atrophy of the right kidney which required nephrectomy. 142] The criticism from Ms Roebuck is that there was no consideration of the diagnosis of arterial fibromuscular dysplasia (FMD). However as noted in the decision it is explicitly referred to in the Corporation's decision letter dated 17 February 2016 where they decline cover for FMD, and their explanation is set out in the attached Treatment Injury Report which goes into the matter in more detail. [143] Accordingly, this is not a situation, as submitted by Ms Roebuck, where Ms Boulton should receive deemed cover. [144] Under s 64(1) of the Act, the Corporation must give notice of a decision on a claim to the claimant. [145] Section 64(4) states: Every notice under this section must: (a) Be written; and (b) Give the reasons for the decision; and (c) Give the appellant or other person information about his or her rights to apply for a review, including details of the time available to do so and an explanation of when the application can be made out of time. [146] This information has been provided to Ms Boulton. [147] The Corporation has also conceded that the Reviewer in the review decision dated 1 June 2017 was in a position to consider the other five possible injuries that may qualify as a personal injury for the purposes of attracting cover particularly since the review letter referred specifically to the refusal to accept FMD. [148] This is also identified in the submissions for the Corporation but have not been addressed in any particular manner in the submissions of Ms Boulton unless there has been reference in reports, particularly Dr Hills' reports, in answer to queries from the advocate relating to additional issues. [149] It is accepted that Ms Boulton suffers from FMD. This is a condition that causes extra cells to grow within the walls of arteries. Arteries are blood vessels that carry blood to the heart from the rest of the body. The extra cell growth narrows the arteries allowing less blood to flow through them. One of the symptoms is it can lead to reduced blood flow to the kidneys. The causes of FMD appear to be unknown. [150] There is no evidence before the Court however that this condition is caused by any physical injury. It is accepted that this resulted in stenosis (areas of narrowing), in the renal artery ultimately effecting the renal blood pressure but this is not of itself a physical injury caused by an accident. [151] It is accepted the lack of a diagnosis at an earlier date led ultimately to the physical injury of the atrophied right kidney and the subsequent nephrectomy. [152] I find this was the diagnosis in the ACC45 form, but this does not mean it was a diagnosed "injury" but only refers to her condition. [153] I accept the submissions of the respondent that there is no evidence before the Court to show that anyone could have cured her FMD, and that it was a pre-existing underlying health condition. [154] The second issue is the "Untreated FMD allegedly causing current and future bodily damage". While it is accepted the FMD was untreated due to misdiagnosis there was no evidence before the Court which establishes a failure to treat this condition on its own amounts to a treatment injury. In the words in Ambros: It is not sufficient to prove that the "treatment" risked causing an injury. It must be proved to have done so. [155] Apart from the atrophied kidney, which it has been accepted as a consequence, I find there is no other evidence of physical injury. [156] Counsel for the Corporation in particular has reviewed the cases relating to physical harm or damage. I accept their submission that the symptoms and cell abnormalities are not physical injuries for the purposes of the Act. Accordingly I accept that it is the position that the appellant is not entitled to cover for untreated FMD because she has not met the basic requirement establishing a personal injury that is a physical injury. [157] There is a similar situation in respect to the promotion of the view by Ms Roebuck that TRH qualifies as a personal injury that is a treatment injury. This relates to her hypertension. [158] Dr Hills in his report of 2 January 2018 opines that Ms Boulton is suffering from secondary hypertension rather than hypertension, per se, and implies that secondary hypertension being caused by another medical condition. However, Dr Hills does not refer to the identifiable cause for the disease or personal injury that is responsible. [159] I find this is highly speculative and note it has not been referred to in any of Dr Hills' earlier reports. [160] This equally applies to Dr Hills' discussion in the same letter of 2 January 2018 in respect to end organ damage. He speculates that it no doubt exists, but that it is not possible to diagnose these changes other than by "inappropriate, unethical evasive means". [161] I accept the position of the Corporation that Ms Boulton has not established that TRH has not on the balance of probabilities caused her bodily harm to attract cover under the Act. [162] In respect to the end organ damage, the submissions made by Counsel in respect to this issue and also the analysis in Dr Allawati's report does not attribute a cause to the diagnosis, nor any causal nexus between the FMD and any changes in her ventricular function. [163] It is noted that Dr Hills opines it is quite highly likely she has suffered further damage however this is highly speculative and has no evidential basis. He himself indicates that no tests should be carried out. In addition, it is noted the Corporation, through Counsel, has indicated these are matters which can be looked at in the future, if grounds can be properly established. [164] Additionally, in respect to Treatment Resistant Hypertension (TRH), Dr Hay indicates it has produced no other physical injuries than her right kidney. [165] Finally, the claim that the changes to her bodily damage and adverse health effects are indicated by signs and symptoms. [166] This is an extremely generalised claim. [167] It is accepted that in the intervening period from 2003 until the diagnosis in 2016 that the appellant has had ongoing indifferent health including difficulties with one of her pregnancies. However, the symptoms, such as headaches are not physical injury in terms of the purpose of the Act, and cannot qualify as personal injuries. Accordingly, a general claim of "bodily damage" and "adverse health effects" cannot be qualified as personal injuries. [168] The above discussion does not rule out the other outstanding applications. It is not intended to comment on those, other than noting in a number of the reports aspects of Ms Boulton's presentation, given the long delay in establishing the diagnosis and receiving the right treatment, have been commented on by a number of the medical personnel. [169] It should be noted, that at the present time there is an interim decision of only a continuation of assessment of that particular claim. [170] In conclusion, I am satisfied that although the appellant has had progressive disease(s) which have impacted on her, there are no established physical injuries similar to the Ridealgh decision, to distinguish these proceedings from cases such as Stanley and Robinson. [171] Accordingly, I find that the decision of the Corporation dated 17 February 2017 was correct declining to provide cover relating to FMD. No further injuries other than the atrophied kidney have been identified as being contenders for any other future cover arising out of these particular circumstances. [172] The position of the Corporation in respect to possible future claims is noted. Given the possible predictions of medical personnel, particularly that of Dr Hills, because of the delay of diagnosis it cannot be said that the failure to diagnose in 2003 may not yet lead to further physical injury. [173] I accept that the Reviewer was correct in her findings that the Corporation declining cover for fibromuscular dysplasia in its decision of 17 February 2017 and that the FMD disease is not a personal injury in terms of the Act. [174] I do not find that her decision that the other issues such as severe untreatable hypertension and other symptoms required to be the subject of a separate claim and that the ACC's position was correct in this respect and they have been dealt with in this decision which in terms of the Act is in fact a rehearing. [175] Accordingly, this application for appeal is dismissed. [176] There is no issue as to costs. Judge J H Walker District Court Judge Solicitors: Russell Mcveigh, Wellington for the respondent ACR 191-17-Boulton