Thompson v Accident Compensation Corporation HC Tau CIV 2008-470-88

[2008] NZHC 2449

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV 2008-470-88

UNDERthe District Courts Act 1947 and Part 10 of the High Court Rules

IN THE MATTER OF     an appeal pursuant to s 162 of the Injury Prevention and Compensation Act 2001 against a decision of the District Court at Tauranga

BETWEEN  TREACY THOMPSON Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         15 July 2008 (At Hamilton)

Counsel:         J A Hope and M Tawhara for the appellant

J Roberts for the respondent

Judgment:      30 July 2008 at 10.30 a.m.

JUDGMENT OF POTTER J

In accordance with r 540(4) High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 10.30 a.m. on 30 July 2008.

Solicitors:           Waihere Hope, P.O. Box 19342, Hamilton

Accident Compensation Corporation, P.O. Box 242, Wellington

THOMPSON V ACCIDENT COMPENSATION CORPORATION HC TAU CIV 2008-470-88 30 July 2008

Introduction

[1]      In decision No. 18/2008 Judge Cadenhead granted the appellant’s application for leave to appeal to the High Court and stated the following question of law for this Court:

Did the failure to mention the hospital note of Mr Galley dated 15 February

2007 amount to an insufficient consideration of the medical evidence in the context of this appeal?

Judge Cadenhead’s decision

[2]      Judge Cadenhead concluded that Judge Beattie in his decision issued on 12

June 2006 from which the appellant sought leave to appeal:

•   asked himself the appropriate question concerning the issue of causation;

•    could  only  resolve  the  issue  of  causation  by  consideration  of  the  medical evidence;

•    carefully examined the medical evidence and arrived at his preference on the basis of rational reasons that were available to him.

[3]      He then said at [19]:

The only possible basis for the attack of his decision is his failure to directly mention the hospital note dated 15 February 2007 in His Honour’s decision.

After reading that note I can well understand why he did not expressly refer to it, as it seems to add nothing material on the causation issue.  However, as a matter of fairness and caution I would be prepared to state the following question of law for the High Court.

[4]      The Judge then set out the question detailed above.

Background

[5]      Judge Beattie set out the background facts at [3] of his judgment from which

I draw the following summary:

•    On 11 October 2004 the appellant commenced employment as a painter.

•    On 14 October 2004 the appellant first experienced pain in her right shoulder.

•   The appellant first consulted a doctor on 19 October 2004 who certified her as being unfit for work.

•   The questionnaire completed by the appellant’s medical practitioner identified the injury diagnosis as “rotator cuff strain”.

•   The appellant’s employer advised that the appellant was engaged only in normal duties with no heavy work involved.   No advice of injury had been provided directly by the appellant to the employer.

•   ACC sought the opinion of Dr Monash, Occupational Physician who in a report dated 17 November 2004 advised that in his opinion the diagnosis was that of long-term impingement in the right shoulder, aggravated after returning to unaccustomed work.

•   ACC declined the appellant’s claim on 29 November 2004 on the basis of the opinion of Dr Monash.

•   The appellant subsequently lodged a claim for cover in respect of shoulder pain suffered as a consequence of being handcuffed by Police during an arrest in July

2004.

•    ACC accepted this claim.

•   In February 2005 the appellant sought entitlements in respect of the shoulder strain which she claimed was preventing her resuming work as a painter.

•   ACC  sought  the  opinion  of  Mr  Victor  Hadlow,  Orthopaedic  Surgeon  who reported on 29 March 2005 that he could find no evidence of continuing injury from the shoulder strain from the handcuffing incident.  He said:

The effect of any injury is now spent, although there is no clear evidence of a particular injury.

•   By decision dated 5 April 2005 ACC declined entitlements on the basis that the appellant’s current condition was not as a result of any personal injury suffered in July 2004.

•   The appellant sought a review of that decision.  In a decision dated 17 May 2005 the Reviewer found that the appellant’s ongoing problems were due to an impingement syndrome not causally related to any injury suffered on 31 July

2004.

•    In  January  2006  the  appellant  was  referred  to  Mr  Ian  Galley,  Orthopaedic

Surgeon by her GP because of her continuing right shoulder pain.

•  On 28 April 2006 Mr Galley carried out a right shoulder arthroscopy for debridement  of  a SLAP  tear and  sub-acromial  decompression  with acromioplasty.

•   On 12 May 2006 Mr Galley reported that the appellant was doing extremely well following that operation and had a full range of motion and was comfortable with overhead activities.

•    The various reports from Mr Galley, including a report that he provided to ACC

on 26 July 2006, were considered by ACC.

•   On 7 August 2006 ACC issued a further decision advising that it did not change its position from its original decisions of 29 November 2004 and 5 April 2005

and that the appellant’s current condition was not the result of injuries on 14

October 2004 or 31 July 2004.  ACC stated:

The findings during surgery and other comments made by Mr Galley does not support a link between your ongoing shoulder incapacity and the reported injury/ies dated October 2004 and 31/7/2004.

•   The appellant sought a review of that decision and a review hearing took place on 14 November 2006.

•   In his decision dated 22 November 2006 the Reviewer found that Mr Galley’s advice did not unseat the opinions previously expressed by Dr Monash and Mr Hadlow.  The Reviewer therefore confirmed ACC’s decision not to grant cover.

[6]      Judge Beattie then stated:

No  further  medical  evidence  has  been  sought  to  be  introduced  for  the purposes of the appeal to this Court.

That statement gives rise to the question stated on appeal, because at the appeal hearing before Judge Beattie on 24 May 2007 the appellant, who represented herself, handed to the Judge a hospital note from Mr Galley dated 15 February 2007 which had not previously been made available.

[7]      Mr Galley’s note of 15 February 2007

15/2/2007 Galley Team Booked List DGJ9496 THOMPSON, Treacy Elizabeth DOB: 09/10/1963 F 43y

WARD:  TW3

PREOP DIAGNOSIS             Recurrent impingement Right Shoulder & Slap Tear Right Shoulder

POSTOP DIAGNOSIS           As Above

OPERATION:  Arthroscopic Slap Tear Right Shoulder & Arthroscopic Acromioplasty Right Shoulder

IMPLANTS:  None
SURGEON/S  Mr I Galley Asst: Dr Stanley

ANAESTHETIST:                 Dr Gouldson

ANAESTHETIST:                 GA

INDICATIONS: Treacy presented with recurrent impingement following acromioplasty.  This was confirmed on ultrasound.  She did have a slap tear noted at the time of arthoscopy which was debrided.  She came forward for slap repair and revision acromioplasty.   The risks of bleeding, infection,

neurovascular injury and non-solution of her symptoms were discussed and understood.

PROCEDURE:   Patient was cleaned and draped in the lateral position. Using posterior and anterior portals the glenohumeral joint was inspected. Rotator  cuff,  including subscapularis,  was intact.   There  was  significant amount of synovitis within the rotator interval which was debrided.   The biceps was normal but the biceps attachment had a Type 2 slap tear.  The rest of the labrum was intact.  2 portals were then placed into rotator interval. Through this the bone over the superior labrum was debrided.  A suture was passed around the superior labrum and using 1 suture anchor the labrum was secured.   Solid repair was obtained.   Attention then directed to the subacromial space.   Soft tissue oblated using a diathermy.   Revision acromioplasty performed.  Rotator cuff was intact from the bursal surface. Wounds then irrigated and closed with 3/0 Nylon.   Dressings and local anaesthetic applied.

POST OP:   Encourage early active range of motion if comfort  allows. Clinic in 10 days for removal of sutures.  Discharge when comfortable.  No heavy lifting for 3 months.

Judge Beattie’s decision

[8]      The Judge reviewed the medical evidence including reports from Mr Galley dated 26 January 2006, 7 April 2006, 12 May 2006 and 26 July 2006.

[9]      The report of 26 July 2006 from Mr Galley to ACC was in response to a request for further particulars by ACC.   The letter was set out in the judgment as follows:

In response to your letter dated 17 July 2006 the findings at arthroscopy were florid bursitis in the subacromial space with thickening of the supraspinatus tendon.  There was no rotator cuff tear, either full or partial thickness.   She had a type 2 acromion.   A thorough debridement and acromioplasty was performed.   In the glenohumeral joint her rotator cuff tendons were again normal.  The glenohumeral joint was normal.  There was a small amount of inflammation and synovitis in the rotator interval.   She had minor instability of the superior labral attachment or a SLAP tear.  This was debrided intra-operatively.  Her biceps tendon was normal.

In summary she had a florid supraspinatus tendinitis and bursitis.   SLAP tears can cause superior humeral head instability and predispose to impingement however I feel that her SLAP tear was not significant enough to be causing this.

As far as a firm cause or link to any injury Treacy has suffered prior to the above surgery we see many patients who have supraspinatus tendinitis after periods of prolonged activities.   Treacy retrospectively attributes her symptoms to starting during an episode in October 2004 when painting a

wall.   She had to lift a lot of heavy paint tins and paint in an overhead position.  She tells me that she was asymptomatic prior to this.  Certainly an activity such as this could trigger a supraspinatus tendinitis.  Any causal link relating the condition to this injury however is based on the history provided.

[10]     Judge Beattie stated at [22] and [23]:

Whilst Mr Galley gives his opinion that the appellant’s condition could have arisen from either traumatic or non traumatic causes, he would seem to have given his opinion without the benefit of either Dr Monash’s or Mr Hadlow’s opinions.  Further, he seems not to have been aware that the appellant first complained of having shoulder problems arising from an incident which occurred in 1997 whilst she was making a bed.

In his advice to the respondent, Mr Galley identified that the arthroscopy had shown up the presence of a SLAP tear but he did not consider this was of significance and was not the cause of her impingement condition.

[11]     The Judge concluded at [25]

I find there is nothing in the advice given by Mr Galley in his letter of 26

July 2006 to the respondent which would counter those opinions.  Mr Galley was not prepared to identify a causal link, and I do not put his assessment as

being any higher than a possibility, and that in any event he was reliant on the potted history given to him by the appellant as opposed to the far more

investigative process that the other two specialists had carried out under the gradual process investigation.

[12]     The Judge said he was satisfied that the appellant’s condition which flared up after two days of work as a painter, was the aggravation of a long-standing and pre- existing condition of shoulder impingement which became inflamed and resulted ultimately in sub-acromial bursitis.  That medical condition did not have its origins in either the personal injury by accident of July 2004 or by gradual process arising from employment as a painter.  He therefore confirmed the review decision of ACC.

Appellant’s submissions

[13]     The appellant’s written submissions extended beyond the narrow question stated for this Court.  In oral submissions Mr Hope identified the issue for this Court as being, whether the report of Mr Galley of 15 February 2007 could or should have altered Judge Beattie’s decision.  He submitted that the reports of Mr Galley which contributed  to  the  conclusion  of  Judge  Beattie  at  [25]  putting  Mr  Galley’s assessment no higher than a possibility, were put into a new focus by the letter of 15

February 2007.  He said that letter “elevates the level of trauma” and puts the matter of causation “in balance” such that it should be referred back to the District Court. He placed reliance on the judgment of Mallon J at [63] and [64] in Ellwood v Accident Compensation Corporation (2007) 8 NZELC 98,657.

[14]     Mr Hope accepted that the 15 February 2007 report does not address the issue of causation but he submitted that was because Mr Galley was not asked about causation.  He submitted the fact the report does not address causation is the very point that raises the necessity for the matter to be reconsidered by the District Court because the oversight of Judge Beattie in failing to address the report meant there was no re-balancing of the medical evidence in relation to causation, in the light of the evidence of trauma disclosed by the 15 February 2007 report.  He said the report raised “new matters” which required the issue to be referred back to the District Court for further investigation.  He noted, without being able to throw any light on the difference, that the report referred to a “Type 2 Slap Tear” whereas a previous report by Dr Galley on 28 April 2006 referred to a “Type 1 Slap Tear”.  He noted there had been further surgery performed by Mr Galley (but no surgery performed by Dr Monash or Mr Hadlow).

[15]     Mr Hope referred to the Court of Appeal judgment in ACC v Ambros [2008]

1 NZLR 340:

… that the question of causation is one for the courts to decide and that it could in some cases be decided in favour of a plaintiff even where the medical evidence is only prepared to acknowledge a possible connection.

and that a “generous  and unniggardly approach” should be adopted  which  may support the drawing of “robust” inferences in individual cases.

ACC submissions

[16]     Mr Roberts noted that the question stated for this Court is a narrow one, the sole issue being whether Judge Beattie erred in law by not referring to the hospital note from Mr Galley dated 15 February 2007.  He said that the hospital note is silent on causation and therefore adds nothing to Mr Galley’s previous reports, which were

summarised by Judge Beattie in his judgment at [17]. He submitted that the note of

15 February 2007 merely repeats Mr Galley’s previous diagnosis of an impingement and a Slap Tear.  It does not comment on causation at all, which was the central issue for Judge Beattie.  He submitted that, therefore, there was no error of law by Judge Beattie in not referring to the hospital note.

[17]     Mr Roberts also pointed out that the pre-operation diagnosis of Mr Galley (“Recurrent impingement Right Shoulder and Slap Tear Right Shoulder”), and the post-operation diagnosis were the same.   The 15 February 2007 note referred to a Slap Tear noted at the time of arthroscopy and placed no emphasis on the tear described as a Type 2 Slap Tear.  Accordingly, he said, the hospital note could not tip the balance as submitted by the appellant.   It made no change to the medical evidence summarised by Judge Beattie in which he correctly analysed that Mr Galley was not prepared to identify a causal link, while Mr Hadlow and Dr Monash considered the appellant’s condition was not caused by her painting activities but rather an aggravation of a previous condition had likely occurred.

Discussion

[18]   For cover to be granted under the Injury Prevention Rehabilitation and Compensation Act 2001 there is a need for a causal nexus to be established as a matter of fact between the accident alleged and the personal injury suffered.   The requirement is for the claimant to establish causation on the balance of probabilities: Atkinson v Accident Rehabilitation Compensation & Insurance Corporation  [2002]

1 NZLR 374 (CA); ACC v Ambros.

[19]     The issue for Judge Beattie was therefore: Was it more likely than not that the appellant’s shoulder incapacity was the result of the July 2004 incident and/or the October 2004 reported work related injury?

[20]     While  a  “generous  and  unniggardly  approach”  is  advocated  -  Harrild  v

Director of Proceedings [2003] 3 NZLR 289 at [19] (CA); ACC v Ambros at [70]:

… there must be sufficient material pointing to proof of causation on the balance  of  probabilities  for  a court to  draw  even  a  robust  inference  on causation.  Risk of causation does not suffice: ACC v Ambros at [70].

[21]     The report provided by Mr Galley to ACC on 26 July 2006 addressed the findings at arthroscopy and referred to a Slap Tear which was debrided intra- operatively.  He stated that Slap Tears can cause superior humeral head instability and predisposed to impingement but he did not feel the appellant’s slap Tear was significant enough to be causing this.  Taking account of the appellant’s advice to him that she was “asymptomatic” prior to the painting episode in October 2004, he opined that such an activity “could trigger” a supraspinatus tendinitis.

[22]     In the 15 February 2007 hospital report he refers again to a Slap Tear noted at the time of arthroscopy which was debrided.  He then describes the further procedure undertaken and makes reference to a “Type 2 Slap Tear”.   There is nothing in his report to suggest any significance in this description of the Slap Tear.  The report is simply a description of a further procedure, with no change in the diagnosis pre and post-operation.

[23]     I do not consider there is anything in the 15 February 2007 hospital note which should have signalled to the District Court Judge that this was a report that could have a bearing on the issue of causation with which he was concerned.  To the contrary, it is consistent with the findings described in the letter of 26 July 2006 upon which Mr Galley gave his limited opinion in relation to a causal link.

[24]     I do not consider that the 15 February 2007 report adds or provides material pointing to proof of causation or puts the matter in balance in the way submitted for the appellant such that the omission by Judge Beattie to refer to it, whether by way of  oversight  or  because  he  did  not  consider  it  relevant,  results  in  his  giving insufficient consideration to the medical evidence.   It did not provide additional material  that  could  or  should  have  indicated  “even  a  robust  inference”  as  to causation, contrary to those previously drawn.

[25]     For the sake of completeness I observe that Ellwood v ACC concerned the interpretation and application of s 116 of the 1998 Act (s 117 of the 2001 Act).  That

section  gives  ACC  a  discretion  to  suspend  a  statutory  entitlement  “if  it  is  not satisfied …” as to entitlement of the insured to continue to receive the statutory entitlement.  The judgment addresses the onus of proof in that situation, which is a different situation from that where a claimant is claiming entitlement.  In that case, the claimant carries the onus of establishing on the balance of probabilities, the causal nexus required.

Result

[26]     The answer to the question stated is “No”.