Estate of T v Accident Compensation Corporation (s 119 Disentitlement)

IN THE DISTRICT COURT AT WELLINGTON ACR 156/14 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN THE ESTATE OF T Appellant AND ACCIDENT COMPENSATION CORPORATION Responden Date of Minute: 5 April 2017 MINUTE OF JUDGE L G POWELL [1] Judgment on this appeal was issued on 27 January 2017.' At the end of the judgment I noted: ...the subject matter of this judgment means that it comes with the restrictions on publication contained in s 71 of the Coroners Act 2006. The default position is therefore that the judgment will not at this stage be published and that instead of publication a placeholder will be inserted on the NZLII website to indicate the reason for the non-publishing of the judgment. If however the parties consider it would be useful for the judgment to be published, particularly given the lack of previous judicial consideration of s 1 19(3) of the Act, the Court is prepared to refer the issue of publication to the Chief Coroner under s 71A of the Coroner's Act 2006 in order to seek an exemption to enable the judgment to be published. The Court therefore seeks comment from the parties on or before 17 February 2017 as to whether an exemption should be sought and, if so, whether the judgment should be anonymised in any way prior to seeking such an exemption. [2] Submissions were filed by both parties as directed. Overall publication of the judgment was supported by the parties and to this end various amendments were proposed so as to suppress the details of the deceased, as well as the method of death. [3] I agree with the approach proposed and I direct that henceforth the appeal would be known as The Estate of Tv Accident Compensation Corporation. [2017] NZACC 6 41 As a result the judgment has been anonymised to allow publication. This process is now complete, and a copy of the anonymised judgment is annexed and marked "A". Accordingly unless there are any other issues which are raised by the parties by 5 p.m. 13 April 2017, I direct that from 21 April 2017 the anonymised version of the judgment will be made publicly available, including being placed on the NZLII website. Judge L G Powell District Court Judge 156/14 Mihotich, Derek From: Mihotich, Derek Sent: Thursday, 6 April 2017 3:46 p.m. To: 'info@jmlaw.co.nz'; 'bfmail@buddlefinlay.com' Subject: Judgment for ACR 156/14 Attachments: [2017] NZACC 6 .pdf Dear Sir The Estate of T v Accident Compensation Corporation This judgment was first issued on 27 January 2017. At that time publication of the appellant's name was forbidden But the judgment did have the appellant's name throughout it's text). Since then full name suppression has been granted, and a new judgment is issued, copy attached. Could everyone please ensure that the old judgment removed from your records and destroyed. Thank you. You can find out more about ACC appeals on the Ministry of Justice website - visit www.justice.govt.nz/tribunals. If you have any questions, please contact me; my details are below. Kind regards 1 "A" PURSUANT TO S 160(1)(b) ACCIDENT COMPENSATION ACT 2001 THERE IS A SUPPRESSION ORDER FORBIDDING PUBLICATION OF THE APPELLANT'S NAME AND ANY DETAILS THAT MIGHT IDENTIFY THE APPELLANT IN THE DISTRICT COURT AT WELLINGTON [2017] NZACC 6 ACR 156/14 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN THE ESTATE OF T Appellant AND ACCIDENT COMPENSATION CORPORATION Responden Hearing: 14 December 2016 Appearances: T W R Lynskey as advocate for the appellant S M Bisley and B J Maltby for the respondent Further Evidence Completed: 19 December 2016 Judgment: 27 January 2017 RESERVED JUDGMENT OF JUDGE L G POWELL [1] On 3 February 2013 a married man and father of four tragically committed suicide. The cause of his death was confirmed by Coroner Garry Evans in a Certificate of Findings issued pursuant to s 94 of the Coronial Act 2006 on 11 September 2013.1 2] Pursuant to s 119(1) of the Accident Compensation Act 2001 the Corporation is not permitted to provide entitlements for the "death of a claimant due to suicide". Section 119(1) does not apply if the claimant's death was, pursuant to s 119(3) the result of: .. . mental injury suffered because of physical injury suffered by the claimant for which he or she had cover. [3] In this appeal the Estate of the deceased has challenged a decision of the Corporation dated 23 April 2013 disentitling the Estate under s 119(1) of the Act on the basis that the suicide fell within the exception set out in s 1 19(3). Specifically the Estate has argued that the suicide was the result of chronic lumber pain arising out of a 2003 covered injury after a tree fell on the deceased. [4] The Corporation's decision was upheld at review and the Estate has now appealed. [5] The sole issue at appeal is whether the components of the s 119(3) exception have been made out. Legal Principles (6] Mr Lynskey, on behalf of the Estate, submitted that where it appears that a claimant might fall within the s 119(3) exception a "liberal interpretation ought to be applied" and that a "heavy onus falls on the Corporation to demonstrate that disentitlement is justified". Such an interpretation is opposed by Mr Bisley on behalf of the Corporation and in my view cannot be correct. The various disentitlement sections in the Act of which s 119 forms a part have a particular place in the accident compensation framework as the Court of Appeal noted in Accident Compensation Corporation v Peck:2 [19] In particular circumstances, the Corporation is not liable to provide a person an entitlement under the Act. In effect these are situations of 'disentitlement", where the basic duty imposed on the Corporation to provide entitlements is negated by the Act. 7] It follows that the correct approach is to give effect to the disentitlement provisions strictly according to the terms set out in the legislation. In this case it is apparent from the relevant parts of the wording of s 119(3) set out at [2] above that to succeed the Estate must show: CSU-2013-PNO-000061 decision 98/2013 2004] NZCA 324 [2005] NZELC 97, 712 [a] The deceased had a mental injury, being a "clinically significant behavioural, cognitive or psychological dysfunction";3 [b] The deceased's mental injury was caused by a physical injury for which he had cover; and [c] The deceased's suicide was the "result of" or was caused by that mental injury. The Case for the Estate [8] Mr Lynskey submitted that the component parts of s 119(3) were present in this case. Specifically: [a] At the time of his death the deceased was suffering from "chronic pain", noting with reference to DSM IV his back pain has persisted for more than six months; [b] The chronic pain suffered by the deceased was the consequence of his 2003 accident for which he had received cover for injuries to his thoracic and/or cervical spine although not to his lumbar spine where the pain was centred. In Mr Lynskey's submission however; It was noted that an x-ray of [the deceased's] lumbar region was not taken at the time of the 2003 accident. Therefore, it is submitted that while the extent of the injuries sustained in 2003 might not have been properly described, physical injuries were nevertheless suffered by [the deceased]. [c] With regard to the final element required to establish the exception it was Mr Lynskey's submission that while "we'll never have a definitive account as to why [the deceased] made the decision he did ... there is a convincing narrative that suggests he was a man burdened down by his relentless pain and the effects it had on his life". Accident Compensation Act 2001 s 27 Diagnostic and Statistical Manual of Mental Disorders, 4th Edition, Text Revision "DSM-IV-TR") Discussion and Analysis 9] Having reviewed the evidence carefully and in spite having the deepest sympathy for the Estate and the deceased's family in particular I am satisfied that none of the components of's 119(3) are able to be satisfied by the Estate on the basis of the evidence that is available. The reasons for my conclusions are set out below. No evidence the deceased suffered from a mental injury [10] While there is no dispute that at different periods, including in particular from August 2012, the deceased suffered from pain in his lumbar region and on occasion that pain was described as "chronic", there is no basis to characterise this pain as a mental injury. Contrary to Mr Lynskey's submissions DSM-IV-TR does not provide any support for the proposition that chronic pain is a mental injury if it continues for more than six months. On the contrary DSM-IV-TR identifies a range of pain disorders which would qualify as mental injuries under the Act. None are identified as simply "chronic pain" and all have a complex set of diagnostic conditions which require specialist opinion before any diagnosis could be made and there is no such evidence available in this case. Instead, although Neil Watson, an orthopaedic surgeon, retained to investigate the cause of the deceased's lumbar pain, used the term "chronic and unrelenting" to describe the deceased's pain symptoms in October 2012, in no sense did Mr Watson at any time purport to diagnose the deceased as suffering from a mental injury nor was he qualified to do so. Similarly while Greg Sheffield, a physiotherapist, at the relevant time a clinical leader outpatient physiotherapy at the local District Health Board, and who had treated the deceased and provided an affidavit on behalf of the Estate, noted that as well as his diagnosis of disc derangement the deceased also displayed "signs of central sensitisation", this again did not purport to be a mental injury diagnosis. [11] In contrast, while the Estate relied upon chronic pain as the relevant mental injury, the deceased's widow in her own affidavit filed at appeal did not identify the deceased's pain as a mental injury but rather that it was the cause of depression and disillusionment. [12] Such an alternative lay diagnosis is also not supported on the evidence before me. In particular the deceased's general practitioner, Dr Bill Cartledge, who had been treating him from 6 August 2012 noted on 4 February 2013, upon being informed of his death: Spoke to ... Police, Apparently [the deceased committed suicide] yesterday. Apparently at the moment it is unclear why. I am absolutely staggered. When I saw him on Thursday I can say unequivocally that there was no indication at all of depression - he had a good affect and was smiling and the best I had seen him for a while. Good eye contact and always and looking forward to getting back into work. There was never any suggestion of low mood or self-injurious behaviour. Looking back the notes there has never been any mental health issues, either. [13] Upon further reflection, some two weeks later Dr Cartledge commented: As far as I can tell, again from personal knowledge and review of his notes, both paper and electronic, [the deceased] never appeared to suffer from any mental health problems. Around the time of his death, the only medication [the deceased] was taking was small amounts of tramadol for his back pain. His usage of analgesics had in fact dropped considerably in the last 2 months before his death and when I saw him last he told me that he took one tramadol on an 'as needed' basis now rather than regularly - and that was all. [14] Dr Cartledge went on to detail his final meeting with the deceased: I next saw [the deceased] on the 31" of January when his back was clearly improving. He came to the appointment with his boss from PAE who he clearly wanted in on the consultation with him. He felt that he needed to go back to work from a financial point of view and that fortunately his back was much better. On examination, he had a range of movement in the back that was better than mine. He had no sciatic pain or similar. I suggested to him that rather than ploughing straight back into work full time he might have a phased return to work over a period of a couple of weeks in order to let his musculature adjust to work again. In addition, I have had several patients with back injuries who have been helped by weight-lifting belts and I suggested he might look at obtaining one of these. His boss was quite amenable to the phased work return but said he would to clear it with head office; he did not feel this would be any sort of problem however. [The deceased] was also in agreement with this plan. We parted on very good terms with some jokes. I asked him if he was not fed up of spending time with the children; he replied, smiling, that he was sick of that after about 2 days. Going out of the door I said 'see you again' to which he answered 'Yes, but hopefully not for some time'. At no point did I have the impression that he had a depressive illness; he maintained good eye contact, had a good affect and conversed entirely normally. He was looking forward to getting back to work, but understandably slightly nervous having been of work for such a long period. I fully expected to see him again, but as he mentioned, perhaps not for some time. [15] The reality is that at no point was the deceased ever diagnosed with any mental injury, whether chronic pain or depression. The only opinion provided on the specific issue as to whether the deceased had a mental injury by someone who actually treated him were the comments provided by Dr Cartledge who indicated strongly that the deceased was not suffering from a mental injury. Although Dr Cartledge is not a specialist, in the absence of any other evidence it is nonetheless the best evidence available to the Court. As Dr Kris Fernando, a psychologist and the National Manager: Psychology and Mental Health at the Corporation pointed out: There is no medical evidence that [the deceased] suffered from any other clinically significant behavioural, cognitive or psychological dysfunction. There is some information from the family to suggest that [he] was suffering some depressive symptoms but without any assessments having been carried out, it is now impossible to determine whether this would have constituted a clinically significant behavioural, cognitive or psychological dysfunction. There is simply not enough available information and the information from different sources is inconsistent. [16] Taken together I conclude there is insufficient evidence to conclude that the deceased was suffering from any form of mental injury at the time of his death. As Mr Bisley has submitted such a conclusion is sufficient to determine the appeal, and on that basis alone the appeal must be dismissed. Any mental injury could not have been caused by a physical injury for which the deceased had cover [17] Notwithstanding the conclusions set out above for completeness it is noted that even if a mental injury had been established, whether chronic pain or depression, such a diagnosis would have been linked to the lumbar pain experienced by the deceased at different periods and in particular after August 2012. The problem for the Estate is that the Corporation did not accept that the lumbar pain experienced by the deceased was the result of any covered injury and indeed it was this lack of acceptance that was an obvious source of frustration to him in the period before his death. Specifically the Corporation by decision dated 13 September 2012 had declined cover for a lumbar disc prolapse arising out of an incident on 2 August 2012 when the deceased experienced the onset of lumbar pain getting out of bed. While this decision was challenged by him as Reviewer Rex Woodhouse noted in his decision of 30 November 2012 dismissing the review, the deceased was in agreement that the August 2012 incident had not caused his ongoing lumbar pain. [18] The review decision was not appealed and as a result the focus switched back to the deceased's 2003 injury, for which as noted he had received cover for cervical and thoracic sprains. While both the deceased and his wife considered this accident to be the cause of his ongoing lumbar pain the Corporation did not agree and instead suspended the deceased's entitlements on the basis that his ongoing incapacity as a result of lumbar pain was not caused by the 2003 accident and in particular the injuries for which he was given cover. This decision was also challenged by the deceased but following his death was upheld at review, and as it was not appealed is now final. I therefore conclude for the purposes of the present appeal it is not open for the Estate to argue that the deceased's lumbar pain was the result of physical injuries for which he had cover, and instead constitutes a further insurmountable barrier to being able to rely upon the s 119(3) exception in the present appeal. No evidence that the deceased's suicide was caused by a mental injury [19] Finally, even if the Estate had been able to establish the deceased was suffering from a mental injury caused by a physical injury for which he had cover, there is simply no evidence to show that any mental injury caused his suicide. As Mr Lynskey appropriately acknowledged "we will never have a definitive answer as to why [the deceased] made the decision he did". Instead the circumstances of his death were considered by Coroner Garry Evans, who in finding the deceased had wilfully killed himself reviewed the available evidence including evidence from the Police, the deceased's wife and Dr Cartledge and concluded:" [18] It is clear that [the deceased's] sad decision to take his life was influenced by and related to the personal, family and work matters recorded in these findings. It is sad, indeed, that he should have felt under pressure to take his life at a time when arrangements were being made for his return to employment on a phased basis ... [20] Coroner Evans findings obviously have great persuasive weight and clearly militate against any conclusion that a mental injury caused the deceased's suicide. In CSU-2013-PNO-000061 decision 98/2013 addition it is difficult to see even if he had suffered from chronic pain as a mental injury as argued by the Estate, how that could have directly caused him to commit suicide. There is certainly no medical evidence before the Court as to how such causal mechanism could have worked in contrast to other forms of mental injury which more obviously could have led to a loss of the normal mechanisms of control, and resulted in the suicide of a claimant. Indeed rather than arguing a direct causal link the observations of the deceased's wife and Mr Sheffield more plausibly suggest that the presence of pain caused depression and it was the depression that caused the suicide, although as noted above, such a diagnosis is not supported by the evidence available, is contrary to Dr Cartledge's conclusion which I prefer, and in any event it was not what was argued by Mr Lynskey at the hearing before me. Taken together, I therefore conclude that this component of the s 119(3) test is also not able to be established and for this reason as well the appeal must be dismissed. Decision [21] The appeal is dismissed. There is no issue as to costs. Judge L G Powell District Court Judge Solicitors: John Miller Law, Wellington, for the appellant Buddle Findlay, Wellington, for the respondent ACR 146-14-Estate of T