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Accident Compensation Cases

Smith v Accident Compensation Corporation (DC, 14/06/04)

Judgment Text

DECISION OF JUDGE P F BARBER ON AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge P F Barber
The Issue 
[1]
Pursuant to s 162 of the Act, the appellant seeks Leave to Appeal to the High Court from decision No. 318/2003 issued by His Hon. Judge J Cadenhead on 8 December 2003; and the respondent Corporation opposes that application on the basis that the appellant has not raised a question which could be wrong in law. 
Facts 
[2]
The appellant suffered a severe injury to his left ankle and foot in 1971. He suffered a further injury to the left ankle in early 1990. In March 1992 the appellant was referred to Mr Patrick Beehan, Plastic and Reconstructive Surgeon who treated the appellant in 1992, 1994, 1996 and again, in August 2001. Over that period the appellant also received care from the District Nursing Service. 
[3]
In early 2002 the appellant was advised to have a below left knee amputation. The appellant received advice on the matter from Mr Beehan as well as from Mr Thin Hong (Orthopaedic Surgeon) and Mr Stuart McNicol (Plastic Surgeon). The appellant consented to the amputation and such surgery was undertaken on 21 February 2002. 
[4]
In May 2002 the appellant applied to the Corporation for cover for medical misadventure regarding the amputation. 
[5]
The Corporation investigated the claim and obtained an independent report dated 9 September 2002, from Mr John de Geus, Plastic and Reconstructive Surgeon. Having reviewed all the medical information available, Mr de Geus opined that there was no evidence of medical error. 
[6]
The matter was then reviewed by the Medical Misadventure Panel who concurred with Mr de Geus' advice. 
[7]
On 5 December 2002 the Corporation wrote to the appellant to advise him that his claim for cover for medical error was declined. 
The District Court Decision 
[8]
The issue before the District Court concerned the appellant's entitlement to cover for medical misadventure. The Court identified the particular issues at paragraph 1 of its decision as follows: 
“The issues in this case are: 
[i]
Was there medical error in that the surgeon did not take a procedure in respect to skin grafting at an early stage, but rather waited to treat the matter conservatively, and over a period of time the leg ulcerated to an extent that it had to be amputated. 
[ii]
The failure to provide an accident compensation form C11 for the operational costs for microflap surgery and a skin graft by the surgeon directly resulted in the subsequent leg amputation. ”
[9]
The District Court described the opposing arguments as well as the evidence from the appellant, Mr Beehan, and Dr de Geus at pages 8 to 17 of the said decision of Judge Cadenhead. 
[10]
The District Court proceeded to identify, at pages 18 and 19, the relevant statutory provisions and case law, noting that “medical error” is defined under s 33 of the 2001 Act. The Court also noted that pursuant to s 62 the Corporation is required to have regard to the advice of an independent expert as to whether medical error has occurred. 
[11]
At pages 22 and 23 Judge Cadenhead made his findings based entirely on the factual and medical evidence available. He held, inter alia: 
“[108]
The appellant was unrepresented at the appeal hearing and I have considerable sympathy for him to this end I have endeavoured to see that he has not been handicapped by not having counsel. I have tried to analyse in some detail the submissions put forward by the parties, and test his allegations against the factual background, as I am of the view that such an analysis is the key to determine whether there is medical error or not in this case. Particularly important is the chronological medical history and nursing details extending from 1992 down to 2002. 
[109]
I must first deal with the allegations levelled against the independent specialist, Mr de Geus, engaged by the medical misadventure unit. I categorically can find no evidence of bias or a conspiracy on his part as alleged by the appellant. I think that this report gives a fair and accurate summation of the medical position. I, also, am of the view that his opinion that there was no medical error in this case was a fair and accurate opinion. I, therefore, must give regard to the opinion of Mr de Geus in the factual analysis. The appellant called no medical evidence on his behalf. While not conclusive, weight has to be given to the views of properly qualified doctors concerning the issues confronting me
[110]
It seems reasonably clear that at least by 1994 the appellant was advised as to the appropriateness of a skin flap graft, but he did not choose to confront this procedure. The appellant, again, as shown from medical and nursing notes and records chose not to follow the conservative treatment of bed rest and bandaging prescribed by his medical advisors. It may be that the appellant because of financial or business reasons could not take this advice, but the advice was given and not taken. If that advice had been taken a different result may have eventuated. 
[111]
In 1992 I do not think, in these circumstances, that Mr Beehan fell below the standard of care required by the duty upon him in following the course of conservative treatment prescribed. Certainly, by 1994 he was advising a surgical procedure, but the appellant resisted taking this course. No-one could reasonably foresee in the period between 1992 and 1994 the failure to take the skin flap procedure would subsequently lead to the amputation of the leg. On this aspect of the case I would hold that there was no medical error here. ”
(Emphasis added).
The Submissions for the Appellant on the Application for Leave to Appeal 
[12]
At the substantive hearing at Hamilton on 5 November 2003, the appellant appeared in person. The Notice of Appeal dated 16 January 2004 is filed by Mr K W Reid, as counsel for the appellant, and sets out the following grounds: 
“1.
That the learned Judge erred in law in holding that medical treatment afforded the appellant and the long delay in resolving his injury problem, leading to amputation of his foot did not meet the criteria to establish Medical Misadventure. 
2.
The Learned Judge also erred in law in failing to consider that the final resolution of the appellant's foot injury problem, namely the amputation of his foot was a personal injury per se, to which cover should be extended. 
3.
The Learned Judge acknowledged (P8 Paragraph 46) that the Reviewer considered that the amputation could be a distinct injury separate from the gradual process of ulceration. In doing so however the Learned Judge did not go on to consider this finding in terms of Section 26 of the Act, i.e. personal injury simpliciter. ”
[13]
Mr Reid then filed helpful and succinct written submissions which I set out as follows: 
“1.
It is submitted that the Learned Judge in Decision Number 318/2003 erred in law in finding that the lengthy delay in resolving the appellant's foot problem had no bearing on the ultimate result (amputation). Further, that such delay did not bring the appellant within the criteria for establishment of a Medical Misadventure Claim under Section 32 of The Injury Prevention, Rehabilitation, and Compensation Act 2001 (The Act). 
2.
It is submitted that the sequence of events concerning the appellant's injury problem comes within the definition of ‘treatment’ and accordingly, enables the provisions of Section 32 of the Act to apply to the case. 
3.
Section 33 of the Act provides that Medical Error can arise from a decision whether or not to give treatment or a decision on what treatment to provide. (Section 33(3)(b)(c)). 
4.
In these circumstances it is submitted that the surgeon's decision to observe the progress of the appellant's condition and in doing so, delay the ultimate resolution of such condition compounded the appellant's problem and eventually led to the drastic option of amputation of the appellant's foot. 
5.
It is submitted that the surgeon's failure to submit to Accident Compensation Corporation a C11 form requesting Private Hospital surgery was another factor in the delay process. It is further submitted that the Learned Judge erred in law in not applying that situation to the various criteria set out in Section 33 as a further contributor to the Medical Error claimed. 
6.
Accordingly it is submitted that a more aggressive and active medical intervention approach in the earlier stages of the appellant's problem would have prevented the ultimate result of amputation. 
7.
In considering the Review Decision appealed from, the Learned Judge in Decision Number 318/2003 (Page 8, paragraph 46) acknowledged that the Reviewer considered that the amputation of the appellant's foot could be a distinct injury, separate from the gradual process of ulceration. 
8.
Neither the Reviewer nor the Learned Judge then considered the possibility of dealing with that finding in terms of Section 26 of the Act establishing that the appellant had suffered Personal Injury Simpliciter. The matter could have been considered and dealt with under that Section without the connotation of its being linked to medical treatment. ”
[14]
Although Mr D Tui filed detailed submissions for the respondent, he did not feel the need to file submissions in reply. Because I agree with Mr Tui's submissions I do not summarise them, but incorporate them into my reasoning below. 
Reasons for Decision on Application for Leave to Appeal 
[15]
In order for the appellant to be entitled to leave under s 162 of the 2001 Act the appellant must raise a question which is wrong in law. An appellant is not entitled to leave to appeal to the High Court on questions of fact. Section 162 provides for an appeal to the High Court, with leave, where this Court's decision is “wrong in law”
[16]
The point of law must be capable of bona fide and serious argument (refer to Impact Manufacturing Limited v ARCIC — unreported, Wellington High Court, AP 266/00, 6 July 2001, Doogue J). 
[17]
I consider that the grounds raised in the “Submissions for the Appellant in Support of Application for Leave” raise only questions of fact and not matters of law. Those grounds can be summarised as follows: 
[i]
That the District Court allegedly erred in law in finding that any delay in treatment did not lead to the amputation; 
[ii]
That the failure by Mr Beehan to submit a C11 ACC form to the Corporation was allegedly another factor in the delay process; 
[iii]
That a more aggressive and active medical intervention approach in earlier stages could have allegedly prevented the amputation; and 
[iv]
That the amputation could have been dealt with under s 26 of the 2001 Act on the basis that the appellant allegedly suffered “personal injury simpliciter”
Relationship between Delay and Amputation 
[18]
The appellant contends that the alleged delays treating the appellant's ankle led to the amputation. The appellant also contends that the sequence of events, in particular the delay, comes within the definition of treatment and permits the application of ss 32 and 33. 
[19]
However, there was no determination by the Court that the advice and actions of Mr Beehan and other health practitioners did not constitute treatment. Judge Cadenhead found that such delay did not result in the amputation. 
[20]
This ground, along with grounds [ii] and [iii], pertain to the issue of causation which turns on matters of fact and, in particular, an analysis of the available medical evidence. The Court expressly stated at paragraph [108] (set out above) of the decision that its analysis of the evidence would be determinative of the appeal. 
[21]
Also, I consider that Judge Cadenhead correctly identified the relevant law. He also set out extensively the available medical evidence. It is significant that the appellant did not produce any medical evidence of his own on the issue. The Court determined, as one of its findings, that there was no causal nexus between the amputation and the treatment provided by the various practitioners, in particular by Mr Beehan. It seems to me that the finding was well supported by the evidence as well as the expert advice from Mr de Geus. 
[22]
Given the Court's finding (supported as it was by the medical evidence) that the delay did not result in the amputation, no question of law could arise here. 
ACC C11 Form 
[23]
The appellant contends that the failure by Mr Beehan to lodge a C11 form was another factor in the delay process. 
[24]
This particular ground is academic given the Court's finding that the delay was not causative of the amputation. Further, as determined by the District Court the failure to present a C11 form had no relevance to the subsequent amputation in 2002. At page 23, Judge Cadenhead held: 
“[112]
I do not see how the failure to submit an Accident Compensation form in 1992 for payment for treatment is causatively linked to the amputation of the appellant's left lower leg in 2002. From an early date the appellant should have known that the Accident Compensation Corporation had not received this form and he had ample opportunity over the years on his many visits with his medical advisers to inquire as to whether the form had been sent and why it had not been actioned. I cannot see how the failure to present a C11 form for operational costs in 1992 could be a direct cause of why the appellant had to have his leg amputated in 2002. Certainly, in 1994 if that condition was construed as a necessary causal factor, and not merely a causally irrelevant factor then it had lost its effect by the appellant's actions in 1994. However, I am of the view that the failure to place the form in 1992 was not a relevant causal factor; see the discussion in Causation in the Law (2nd), Hart and Honore, pp109 onward. ”
Aggressive Treatment 
[25]
The appellant contends that more active and aggressive treatment may have resulted in a different outcome rather than an amputation. However, there was no medical evidence presented by the appellant to support this allegation. Even if such evidence were produced, it would not have assisted the appellant. The mere fact that alternative treatment may have resulted in a different outcome does not of itself constitute medical error (refer to s 33(4)(b) of the Act). 
“Personal Injury Simpliciter” 
[26]
The appellant contends that given the findings by the Reviewer and this Court, the appellant's claim for cover could have been considered under s 26 of the 2001 Act (s 26 defines “personal injury”). However, it is difficult to see how an amputation from surgery could constitute personal injury by accident. Notwithstanding, the claim for cover by the appellant and the primary decision by the Corporation concerned the appellant's entitlement to cover for medical misadventure. If the appellant is now seeking cover for the amputation as a result of a different mechanism under the 2001 Act, it is incumbent on the appellant to make a fresh application to the Corporation and for a decision to be made thereon. 
Conclusion 
[27]
The grounds raised for the appellant are simply criticisms of the Court's analysis of the facts and medical evidence. Such criticisms do not constitute questions of law. The appellant has not raised any particular question of law as requiring determination by the High Court. 
[28]
Judge Cadenhead correctly set out the law as it pertained to this particular appeal. He extensively set out the medical evidence. His findings were well supported by the factual and medical evidence available. The appellant has produced no medical evidence to support his appeal. 
[29]
I determine that there are no grounds for stating a case to the High Court on the issues raised. Accordingly, the Application for Leave is hereby dismissed. There will be no order as to costs. 

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