Accident Compensation Corporation v Studman

[2013] NZHC 2598

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002706 [2013] NZHC 2598

BETWEEN

ACCIDENT COMPENSATION CORPORATION

Appellant

AND

BRIAN FREDERICK STUDMAN Respondent

Hearing:	10 September 2013
Appearances:	D Tuiqereqere for Plaintiff Respondent in person
Judgment:	4 October 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 4 October 2013 at 4.55 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

ACCIDENT COMPENSATION CORPORATION v STUDMAN [2013] NZHC 2598 [4 October 2013]

[1]      On 22 March 2010 Mr Studman underwent surgery to treat Dupuytren’s

disease following diagnosis of that disease in his left ring finger in 2009.1

[2]      In December 2010 Mr Studman lodged a claim for cover with the Accident Compensation Corporation (ACC) for “stiffness” in his left hand arising from his earlier surgery.  ACC declined his claim.   That decision was upheld following an internal review.

[3]      Mr Studman then appealed to the District Court.   In a judgment dated 26

October 2012 Judge Joyce QC overturned the ACC’s decision and granted cover to Mr Studman for “injury manifesting in the form of untoward and excessive left hand stiffness”.2

[4]      ACC sought leave to appeal from this decision and leave was granted by

Judge Beattie, who noted:3

… I find that there is a significant question of law in issue, namely whether the  requirement  of  a  treatment  injury  being  a  personal  injury,  that  is  a physical injury, as required by s 26 of the Act, has been established as a matter of fact and law in this case based on the evidence as presented to the court.

[5]      Before turning to consider the question of law so identified, it is necessary to set out a little more of the factual background.

Background

[6]      Prior to his 2009 diagnosis, Mr Studman had been surgically treated for

Dupuytren’s Disease in his right hand in 1997.  He also has a strong family history of the disease; his brother and father had the same condition.

1 Dupuytren’s Contracture is defined in Black’s Medical Dictionary (42nd edition) as:

Progressive thickening and contracture of the fascia in the palm of the hand with adherence of the overlying skin.  A clawing deformity of the fingers, particularly the little and ring finger, develops.  Some patients also have liver disease, diabetes, epilepsy and gout.  Treatment may be unnecessary but surgery can help prevent fixed deformity.  Research suggests that injection with collagenase may help in mild disease. Recurrence is not uncommon even after operation.

2 Studman v Accident Compensation Corporation [2012] NZACC 352.

3 Accident Compensation Corporation v Studman [2013] NZACC 128 at [8].

[7]      In 2009 Mr Studman’s symptoms included pain, tenderness, inflammation and increased contracture. By June of that year he had a “20° PIP joint contracture”. By October, the PIP joint contracture was measured at 30°.  It was determined that surgical treatment was required.

[8]      The surgery was undertaken by a hand surgeon, Dr Taylor, on 22 March

2010.4   The initial indication was that the surgery was successful.  The respondent’s wound from surgery healed satisfactorily.    His flexion was increased to approximately 10°.

[9]      There was, however, a gradual worsening of symptoms.  By June 2010 it was noted that flexion had reduced to 25° and Mr Studman was unable to make a fist. He was then referred by his GP to a plastic surgeon, who diagnosed carpal tunnel syndrome.   Mr Studman was successfully surgically treated for carpal tunnel syndrome on 4 August 2010.

[10]     On 30 August 2010, Dr Taylor saw Mr Studman again, and noted that he had continuing problems with stiffness, swelling and discomfort. He advised:

I think it is worth his while applying for a treatment injury through ACC as he clearly had a poor result from this surgery to date.  I do however feel though that it is likely that there will be ongoing improvement particularly with his flexion if he continues with active and passive range of motion exercises.

[11]     In December 2010, the respondent was again seen by Dr Taylor who noted that “findings today show resolution of the swelling largely.”  He identified “some early Dupuytren’s disease in the palm in line with the middle finger”.  Dr Taylor also noted significant restriction of movement of several fingers. He stated:

I have  grave concerns regarding my ability to increase this gentleman’s range of motion.  He has had significant stiffness and scarring post surgery affecting the two adjoining fingers also for which I think would not be amenable to surgical release.   Clearly Mr Studman is very concerned regarding his current hand function and wishes to gain a second opinion and has asked for ongoing treatment to be given by Bruce Peat.  I will write to Bruce Peat today to ask him to take over this gentleman’s care.

4      As I understand it Mr Studman now says that Dr Taylor may not personally have conducted the operation. However any issues in that regard are beyond the scope of this appeal.

[12]    A claim for cover was lodged with ACC that day.   The claim form was completed and signed by Dr Taylor.   The injury for which cover was sought was identified in the claim form as “Stiffness (L) hand post Dupuytrens surgery (L) ring finger.”  The signs and symptoms were described as “Restriction in range of motion (L) middle/ring/little fingers.” The “events or circumstances which led to the injury” were described as:

Persisting stiffness in small joints (L) hand post surgery.

[13]     ACC investigated the claim for cover obtaining medical and clinical records from the respondent’s GP and Counties Manukau District Health Board.   Both Dr Taylor and Mr Peat prepared letters in support of Mr Studman’s claim.

[14]    ACC then sought independent comment from Associate Professor Alan Thurston, Orthopaedic and Hand Surgeon.  In a report dated 1 June 2011, Associate Professor Thurston opined that Mr Studman’s problems were due to a complex regional pain syndrome (“CRPS”).

[15]     On 14 June 2011 ACC declined cover. ACC advised its reasons as follows:

When considering the chronic regional pain syndrome, ACC acknowledges that Mr Studman has suffered pain following his surgery.   However, ACC notes that pain in itself is not an injury.  This means that the chronic regional pain syndrome does not meet the criteria for cover.

In determining if Mr Studman has a physical injury caused by treatment, ACC has not been able to identify any new injury above and beyond the surgical incision was necessary to perform the surgery required.

ACC has also considered the swelling and stiffness, and notes that both Mr Taylor and Mr Peat’s comments that stiffness post surgery is common, and can be attributed to surgery.  Mr Taylor noting that the the cause of stiffness relates to reaction of the tissues in the hand to surgical insult. ACC has been unable to identify a physical injury causing the stiffness and in noting that the comments of Prof Thurston’s report regarding post operative complications, considers that the stiffness is an ordinary consequence of the treatment Mr Studman underwent for Dupuytren’s Disease.

In conclusion, while the surgical incisions are physical injuries, they were a necessary part of treatment, the stiffness Mr Studman has post operatively is not a physical injury, and is considered an ordinary consequence of the treatment received in this case, and pain is not considered a physical injury.

[16]     Mr Studman saw Mr Peat again on 22 July 2011 and 14 October 2011.  In July 2011, the doctor noted ongoing restriction of movement with the same three fingers.  He noted that with “continued intensive exercise he [the respondent] may yet flex the fingers more into the palm.”  Similar findings were noted on 14 October

2011.  Mr Peat advised Mr Studman’s GP:

I have explained that the lack of flexion to his fingers cannot be corrected with surgery and would have the potential to make this significantly worse. Whether  this  constitutes  a  treatment  injury  I  am  uncertain.    ACC  has declined his initial claim for a treatment injury but this is being reviewed. Certainly the lack of flexion to the unoperated upon little and middle fingers is beyond what is normally expected following Dupuytren’s surgery, and could be regarded as an untoward complication, and therefore a treatment injury.

[emphasis added]

[17]     The respondent applied for a review of ACC’s decision but was unsuccessful.

The Reviewer determined, inter alia:

Mr Peat has specifically noted the operation was appropriate, and there is nothing in the evidence to suggest that anything untoward occurred.  While Mr Taylor acknowledged that there was a delay in the treatment, again there is no evidence that this delay caused the eventual outcome of the operation.

Is there a personal injury that can be identified?

I find that despite the positive comments from Mr Peat and Mr Taylor, there is no evidence of an actual physical injury that has been caused by the operation.

At this point only swelling and pain has been identified and this is not sufficient for the legal definition of a physical injury.  I also note in his most recent letter Mr Peat had resiled from his earlier view and notes that he is unsure whether this is a treatment injury.  However, he has still not identified a physical cause for the stiffness.

The more likely scenario is that the operation has not achieved the desired result. As noted above this is specifically excluded from cover by the Act.

Relevant statutory provisions

[18]     Under s 20 of the Accident Compensation Act 2001 (the Act) there is an

entitlement to coverage for “personal injury” that is suffered in New Zealand after 1

April 2002.  Section 20 relevantly provides that:

(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 personal injury is 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.

[19]     The types of “personal injury” referred to in s 26(1)(a), (b), (c) and (e) are:

(a)      the death of a person; or

(b)       physical   injuries   suffered   by   a   person,   including,   for example, a strain or a sprain; or

(c)       mental  injury  suffered  by  a  person  because  of  physical injuries suffered by the person; or

...

(e)       damage (other than wear and tear) to dentures or prostheses that replace a part of the human body.

[20]     And the term “treatment injury” is relevantly defined in s 32 as follows:

(1)      ... personal injury that is –

(a)      suffered by a person –

...

(ii)      receiving treatment from, or at the direction of, 1 or more registered health professionals;

...        and

(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 kinds of personal injury:

(a)      personal injury that is wholly or substantially caused by a

person’s underlying health condition:

...

(3)      The fact that the treatment did not achieve a desired result does not, of itself, constitute treatment injury.

[21]     “Treatment” is, in turn, defined in s 33.

The District Court decision

[22]     Following ACC’s refusal of his claim, Mr Studman appealed to the District Court.   In a judgment issued on 26 October 2012, Judge Joyce QC allowed the appeal and granted cover.  Having reviewed the relevant authorities and the evidence before him, he said:5

[41] I ... recognise the necessity in the first instance for a personal injury causally linked to the treatment. On the medical evidence before the Court I find it obvious that there was an injury manifesting itself in the form of the untoward stiffness resulting from surgical insult. I see no requirement, in medical evidence terms, for any aetiology beyond that.

[42] Obviously enough, some form or degree of such insult was a necessary part or ordinary consequence of the surgical treatment and, as Professor Thurston's researches underscore, this was always going to be surgery with a range of risks.

[43] Thus it has been upon Mr Studman to establish that more probably than not the treatment injury (I speak here of that manifest in the form of the untoward stiffness) was not an ordinary consequence of the treatment in all the circumstances.

[44] I see the judgment to be made in that respect as one necessitating a focus on fact and degree. Here I rehearse that Mr Taylor, one of the surgeons actually involved in the operation, spoke of a “poor result” - one sufficient to lead him to initiate a treatment claim. And Mr Peat, whose second opinion was sought, recognised “an untoward degree of stiffness ... not an ordinary consequence of this treatment”.

[45] That to me is quite enough to support the conclusion that the particular nature - the particular degree - of stiffness suffered by Mr Studman went beyond what was a necessary part or ordinary consequence of the treatment - to the contrary it was quite out of the ordinary. And the Thurston evidence of the range of risks does not, when considered in its entirety, tip the scales the other way.

5      Studman v Accident Compensation Corporation, above n 2.

[46]      I see it to be beyond argument on the evidence I accept that in the result Mr Studman is left with untoward stiffness - a measure of stiffness quite out of the ordinary - in the affected hand.

[47]     In all of this it will be obvious that I find that I must reject the Corporation’s submissions that it should matter that no (causative of that) discretely identifiable physical injury or insult is disclosed. The stiffness has to have resulted from undue physical injury or insult in the course of the surgery – Messrs Peat and Taylor’s evidence make that clear enough.

ACC’s appeal

[23]     ACC’s simple position on appeal is that the learned District Court Judge was wrong to find that coverage existed because Mr Studman’s claim itself was solely for stiffness  in  the  left  hand  following  surgery.    No  physical  injury  causing  the “stiffness” had been identified and stiffness is not by and of itself a physical injury.

Discussion

[24]     I have little hesitation in  agreeing with Mr Tuiqereqere that the learned

District Court Judge erred, for the reasons that follow.

[25]     In order for Mr Studman to have cover under the Act, s 20 makes it clear that the onus was on him, first, to establish that he had suffered a personal injury of a kind that is described in section 26(1)(a) or (b) or (c) or (e).  Only (b) is potentially applicable here and a “physical injury” is therefore required.   In the words of the

Supreme Court:6

As will be seen, each of s 20 [Cover for personal injury suffered in New Zealand] and s 26 [Personal injury] refers to the other. The best starting point is s 26(1) which, as relevant to the present case, defines “personal injury” (in para (b)) as “physical injuries suffered by a person, including, for example, a strain or a sprain”. So, whenever the Act gives cover for some kind of personal injury, it is requiring that the claimant has suffered some form of physical injury unless the personal injury comes within the other paragraphs of s 26(1). As the illustration provided by s 26(1)(b) indicates, “physical injuries” are those suffered by the claimant which have some appreciable and not wholly transitory impact on the person but which are not necessarily long-lasting or ones that cause serious bodily harm.

[26]     I agree with Mr Tuiqereqere that this requirement for “bodily harm” means that neither “pain” nor “stiffness” by and of itself constitutes a physical injury.

6      Allenby v H [2012] 3 NZLR 425 (SC) at [56].

Although both pain and stiffness may well be symptomatic of an underlying (and potentially qualifying) physical injury, that is not necessarily so.  Most obviously, I suppose, pain could just as easily be caused by disease, for which (in general terms) coverage is not extended.  It is for that reason that it is, in my view, necessary separately to identify the underlying physical injury with some precision.

[27]     The need for precise identification is, in my view, underscored by the terms of s 32.   Without such identification it would not be possible, for example, to determine whether the injury concerned is “a necessary part, or ordinary consequence” of the treatment.  That determination is fundamental to whether or not coverage for treatment injury exists.

[28]    Accordingly I respectfully disagree with the learned District Court Judge’s statements  at  [41]  and  [47]  of  his  decision  that  there  is  no  need  for  further “aetiology” beyond the inference that the stiffness in Mr Studman’s hand was the result of a “surgical insult”.

[29]     While I accept that the surgery may (directly or indirectly) have “caused” the hand stiffness, cover for any physical injury inherent in, or naturally flowing from, the surgery itself is expressly excluded from cover by s 32(1)(c).  And, contrary to what the learned Judge suggests, there was no evidence that Mr Studman’s surgery had gone other than normally.  There was no evidence of any “extra” or “undue” injury occurring during its course.

[30]     Rather, the material I have set out above shows that the doctors formed the view that there was a “treatment injury” simply because the stiffness experienced by Mr Studman was “untoward”. And as the Judge correctly noted (at [44] and [45]) an untoward result is relevant when considering the second stage of the s 20 inquiry, namely whether there has been a treatment injury. But without more, the fact of such a result is of little or no assistance in determining the first stage of that inquiry, namely whether it constituted or was caused by a physical injury.

[31]     Ultimately, it seems to me that the fact that the two doctors both suggested

and supported Mr Studman’s claim for treatment injury appears to have carried some

weight with the Judge.  He appears to have been led into error by the doctors’ own omission to consider the pre-requisite for cover under s 32, namely that there be a personal  injury,  as  elsewhere  defined.     The  existence  of  such  an  injury  is fundamental to coverage under the Act as a whole; it cannot lightly be glossed over.

[32]    In my view, therefore, the stiffness for which Mr Studman claimed is not covered by the Act.   In terms of the question posed by Judge Beattie, the s 26 requirement for a physical injury was not established in his case.

[33]     Notwithstanding that the Court has every sympathy for Mr Studman, the appeal must be allowed. ACC very properly agrees that no issues of costs arise.

Rebecca Ellis J