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Accident Compensation Cases

Riley v Accident Compensation Corporation (DC, 10/03/04)

Judgment Text

DECISION ON APPLICATION FOR LEAVE TO APPEAL OF JUDGE J. CADENHEAD 
Judge J. Cadenhead
[1]
The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge M.J. Beattie dated 31 October 2003. 
[2]
The issue that confronted His Honour concerned the correctness of the respondent's decision of 26 February 2001 whereby it suspended entitlements to the appellant pursuant to s 116 of the Accident Insurance Act 1998, on the grounds that the medical condition which the appellant then presented was not attributable to, or caused by, the personal injury by medical misadventure for which the appellant had been granted cover. 
[3]
It was counsel for the appellant's contention that the appellant's current heart condition, namely, subendocadial ischaemia due to left ventricular hypertrophy, was attributable in some measure to the injury suffered by the appellant during the period from January 1990 to August 1990, and the period following aortic valve replacement surgery, and before remedial surgery was carried out. 
[4]
His Honour said it was the case that there was misadventure in the course of that first surgery, and that the surgeon failed to graft the large proximal OM artery. 
[5]
The background of facts His Honour determined are set out hereunder: 
“In December 1989 the appellant, then aged 50 years, was examined by the cardiac unit at Waikato Hospital following him displaying symptoms of angina. 
At this time the appellant was an inmate of Rangipo Prison. 
Tests carried out indicated that the appellant was suffering from heart disease and that the proposed remedial surgery was ‘aortic valve replacement and coronary artery by-pass surgery with grafts to LAD at major obtuse marginal branch.’ 
The valve replacement and by-pass surgery was carried out on 30 January 1990. 
Approximately one month after surgery the appellant began experiencing chest pain. 
For reasons possibly associated with the fact that he was a prison inmate his condition was not speedily investigated. It was not until August 1990 that he was referred to the Coronary Care Unit at Green Lane Hospital for tests. 
On 23 August 1990 further artery grafting surgery was carried out and the perivalvar leak was stopped. 
The appellant sought cover under the 1982 Act for injury by medical misadventure and although the claim was initially declined, cover was accepted following receipt of a report from Sir Brian Barratt-Boyes. 
The appellant has continued to suffer from angina and is diagnosed as having left ventricular hypertrophy. 
Following the appellant being reassessed for an independence allowance under the AMA Guides' criteria, the respondent's Branch Medical Advisor, in conjunction with Mr Douglas Scott, Cardiologist, reassessed the appellant's condition and took the view that his condition was due to the natural progression of his pre-existing disease rather than from any injury suffered as a consequence of the medical misadventure. It was on that basis therefore that the respondent made its decision on 26 February 2001 to suspend entitlements to the appellant. 
The appellant sought a review of that decision and for the purposes of that review he sought the opinion of Dr Gerald Lewis, Cardiologist and Physician. Dr Lewis provided a report and gave evidence at the Review Hearing. 
In a decision dated 11 February 2003 the Reviewer found, on the medical evidence, that the appellant had not discharged the onus that was upon him to establish that it was more probable than not that his present condition was causally connected with the medical misadventure. The respondent's primary decision was therefore confirmed. ”
Decision of Judge M.J. Beattie 
[6]
His Honour made a painstaking analysis of the medical evidence presented in this case, and reviewed the medical opinions of Sir Brian Barratt-Boyes, Dr Warwick Jaffe, cardiologist, Dr Trevor Agnew, cardiologist, Dr Douglas Scott, cardiologist, and Dr Gerald Lewis, cardiologist physician. 
[7]
The Court received and heard submissions from counsel for the parties on the substance of the medical evidence and submissions on the medical evidence. Counsel for the appellant submitted that the appellant had cover for his injuries pursuant to the provisions of the 1982 Accident Compensation Act and therefore the decision of this Court in Denzel (262/01) and that of the High Court in Gray (AP 250/01, Wellington Registry) were relevant. 
[8]
The appellant submitted that to be excluded from entitlements it would need to be established that the appellant's current medical condition was exclusively caused by his pre-existing heart disease. 
[9]
Further, the respondent's medical advisors had been provided with the wrong test, as the “wholly or substantially”, test was not the correct statutory test for this case. 
[10]
The respondent submitted that, while acknowledged as a matter of law considerations of “exclusively”, as enunciated in Denzel and Gray would apply to the appellant's claim, nevertheless it was up to the appellant to establish there was a causative link between the medical misadventure injury suffered and the medical condition that he presented at the time that the suspension decision was made. 
[11]
Counsel for the respondent further submitted that the onus was on the appellant to establish the necessary causative nexus on the balance of probabilities. 
[12]
The substance of His Honour's decision is set out at p.11, and I set out hereunder paragraphs 30-34 of his decision: 
“[30]
In the case of this appellant he no longer has a leaky heart valve but he continues to suffer from the heart disease which was present and which I find is the cause of his continuing angina problems. Whilst the left ventricular hypertrophy is still present, it was caused by his natural leaking aortic valve and in the period between January 1990 and August 1990 when further and undefined hypertrophy may have occurred, it has not been shown to be causative of his condition to the extent that it could be said to be meaningfully associated with the injury by medical misadventure. 
[31}
I accept the submission made by Mr Barnett that the principles enunciated in the Atkinson case, (AP 25/00 Wellington High Court) are relevant and that the appellant must show on the balance of probabilities that the condition which he presented at the time the respondent made its decision was caused by the procedures and the injury for which he was granted cover. 
[32]
There is no evidence that the appellant's left ventricular hypertrophy is in fact any greater than that pre January 1990 or that any such thickening is itself independently causative as opposed to merely being an aggravation of the existing condition. The onus of proof is upon the appellant and I find that the onus cannot be discharged when at best the appellant's principal promoter, Dr Lewis, can only say ‘I can't definitely say “yes” but I don't think anyone could say “no”.’ Dr Lewis put it only as a possibility and when that is set up against the other specialist evidence which does not make any similar suggestion, then I find that the onus cannot be said to have been discharged. 
[33]
I do not find that this is a case where the evidence establishes circumstances of an incorrect statutory test as submitted by Mr Miller. Even though the incorrect test may have been posed by the respondent in a question to Dr Scott, his answer was unequivocal and the evidence which the Court has considered would satisfy the test of the appellant's heart condition being caused exclusively by disease. As I have already found, the appellant has not discharged the onus of establishing otherwise. 
[34]
In all the circumstances, therefore, I find that the respondent was correct to suspend entitlements on the basis that the appellant's ongoing condition was as a consequence of his pre-existing coronary heart disease, and not as a consequence of any circumstance of injury caused by medical misadventure. ”
The Submissions of the Appellant 
[13]
The appellant has submitted detailed and comprehensive submissions in support of leave to appeal in this case. The appellant submits that the decision of His Honour Judge Beattie raises an important question of law. The question is whether the statutory body ACC or the Court is permitted to make findings of fact relying on medical evidence obtained without the correct statutory test being asked of the specialist advisors. The correct statutory test in this case being whether damage to the claimant's body is caused exclusively by disease, infection or the ageing process rather than the covered personal injury. 
[14]
The appellant, in particular, refers to the decision of Gray (supra) paragraph 14 which read as follows: 
“It may be that at the end of the day that the District Court Judge's assessment would be consistent with what a medical expert would say when asked the correct question. However, it is not correct for the appellant's entitlements in the circumstances of this case to be finally determined without the evidence of the medical expert being more specifically directed to the proper test. It is relevant in that respect that the obligation is on the respondent to comply with the statutory requirements before removing entitlements. ”
[15]
The appellant submits that this statement is making it clear that the respondent is a statutory body and can only operate within the prescribed confines of its governing legislation. 
[16]
The second issue that the appellant raises is whether the learned Judge erred when applying the principles of Atkinson (AP 25/00 Wellington High Court). The Court of Appeal, it is submitted, has made it clear that in relation to the 1982 Act the definition of “personal injury by accident” it is not necessary to identify a particular causative event. 
Decision 
[17]
In my view, the decision of His Honour Judge Beattie was made after a careful analysis and assessment of the evidence. I have considered the decision of Gray (supra) but it should be noted that Her Honour France J was referring to the circumstances that confronted her on the facts of Gray (supra). 
[18]
I am of the opinion that the medical opinion in this case is considerably different than what faced Her Honour in Gray. Here, first, the medical opinion of Dr Scott is not expressed in terms of pre-existing and ongoing disease being a substantial cause, rather, he considered the causation issue on the balance of probabilities and found disease to be the cause. Further, Dr Scott stated this not only in response to the respondent's initial request for an opinion, but in his subsequent opinion. 
[19]
Secondly, the Court had available to it the evidence of Dr Jaffe, who wrote: 
“ … I do not believe that any of his problems are due to the difficulties and treatment or diagnosis at the time of his various operations. ”
[20]
Further, Sir Brian Barratt-Boyes observed that the delay between the first and second operations had caused “no irreparable damage”
[21]
It is clear that in paragraph [33] Judge Beattie was mindful that an incorrect statutory test may have been posed by the respondent in a question to Dr Scott. However, he held Dr Scott's answer was unequivocal, and that the evidence which the Court had considered would satisfy the test of the appellant's heart condition being caused exclusively be disease. 
[22]
This was a factual evaluation of the evidence by Judge Beattie, and having regard to that analysis His Honour found that the appellant had not satisfied the onus of proof upon it to a probability basis. In reaching this conclusion His Honour was well aware of the decision and comments of France J in Gray
[23]
I have examined the case of Child v Hillock [1994] 2 NZLR 65, but I can not discern any principle that with respect to “personal injury by accident” as covered by the 1982 legislation that establishes it is not necessary to establish causation. 
[24]
I do not think that any issue of law can be stated that arises in this case on the issue of causation under the 1982 Act. Judge Beattie has seemed to determine that particular issue in a straightforward way. 
[25]
I agree, that in certain cases, if the questions that the medical examiner asks have an incorrect legal premise then it might be dangerous to reach a conclusion on any opinion ventured, and in particular, where that opinion impinged on the statutory tests for causation. However, in some case, the medical evidence may be that clear that irrespective of the questions posed, the ultimate causation issue is readily discernible and can be answered. 
[26]
I am of the opinion here that Judge Beattie was more than mindful, when he made his assessment of the medical evidence, of the criticisms levelled at that evidence. Judge Beattie determined this case on his own particular facts, and the Judge assessed those facts against the medical evidence. The assessment of differing medical opinions does not necessarily involved a relevant issue of law. Again, while I appreciate the force of the remarks of France J in Gray, it is not every case that will convert an assessment of medical opinion into an issue of law. 
[27]
For the reasons that I have given, I would dismiss this ground raised in supporting leave to appeal to the High Court. 
[28]
In my opinion, Judge Beattie in a straightforward way considered the issue of causation against the facts and medical evidence, and I can see nothing in the submissions of the appellant that would raise a question of law that should properly go the High Court on this issue. 
[29]
Accordingly, I decline to grant leave to appeal. There will be no order as to costs. 

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