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Accident Compensation Cases

Scoullar v Accident Compensation Corporation (DC, 22/12/09)

Judgment Text

RESERVED JUDGMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the Review Decision of 5 June 2009, whereby the Reviewer determined that she had no jurisdiction to hear the substantive issue raised by the appellant by reason of the fact that that issue, as contained in a letter from the respondent dated 5 February 2008, was not a new decision but simply a reaffirmation of the status quo. 
[2]
The substance of the decision was to confirm that the surgery which the appellant sought on his left ankle was not surgery required to treat a covered injury, but rather was to treat a gradual process condition which had been rendered symptomatic by the ankle injury for which he had been granted cover in 2003. 
[3]
The background facts relevant to the issue in this appeal may be stated as follows: 
On 23 August 2003 the appellant suffered a twisted ankle whilst playing soccer. He was aged 36 at the time. 
The appellant obtained cover for that ankle injury. 
Rather than the ankle healing naturally, as it were, with the passage of time, the appellant continued to suffer ongoing pain, he first seeking medical attention some two months after the injury. 
The appellant was referred to physiotherapy for treatment. 
In 2006 the appellant was still having trouble with his ankle and his GP sought further X-rays which identified post traumatic spur formation and loose body formation in the left ankle. 
The appellant was referred to Mr John Matheson, Orthopaedic Surgeon, for assessment. 
Mr Matheson identified post traumatic spur formation and loose body formation in the left ankle and he proposed to carry out a synovectomy and removal of osteophytes arthroscopically. 
Mr Matheson made application to the respondent for approval of elective surgery as stated above. 
This application was referred to the respondent's Clinical Advisory Panel and it determined that the condition sought to be surgically treated was in fact a gradual process condition which had been rendered symptomatic by the covered injury. 
By decision dated 27 July 2006, the respondent declined to accept responsibility for the proposed elective surgery. The stated reason for declinature was as follows: 
“We have carefully considered all the medical information available to us, and unfortunately I must inform you that we do not consider your surgery to be required as the result of the personal injury you sustained on 23.08.2003. The medical evidence we have indicates that your surgery is required as the result of a gradual process condition, which has been rendered symptomatic by the accident of the above date. This means ACC is not able to pay these treatment costs and therefore I have to decline your application. ”
Although an Application for Review was lodged in relation to that decision, it was subsequently withdrawn. 
Mr Matheson carried out the surgery on 22 May 2007 and reported to the appellant's GP following that surgery. 
Subsequently the appellant sought legal advice and in January 2008 Mr Matheson provided a report to the appellant's counsel relating to the surgery which he had carried out in May 2007. 
By letter dated 28 January 2008, Counsel for the Appellant wrote to the respondent enclosing a copy of Mr Matheson's report and requesting that the respondent issue a new decision on surgery costs in the light of that report. 
By letter dated 5 February 2008 the respondent advised that its decision remained the same and that the request for elective surgery costs remained declined. 
The appellant sought a review of that decision and a Review Hearing took place on 7 April 2009. 
It was the position of the respondent at that Review Hearing that the letter of 5 February 2008 was not a decision letter and therefore there was no jurisdiction for the Reviewer to consider the substantive issue of entitlement to surgery costs. 
In a decision dated 5 June 2009, the Reviewer, Ms Jane Wilson, determined that the respondent's letter of 5 February 2008 was not a decision letter within the meaning of the Act, but merely a letter confirming the respondent's earlier decision made in July 2006. 
The Reviewer therefore ruled that she had no jurisdiction to determine the substantive matter sought to be raised by the review. 
[4]
It is Counsel for the Appellant's contention that matters contained in Mr Matheson's letter of 9 January 2008 were fresh medical details relating to the nature and purpose of the surgery and were such that required the respondent to reconsider its earlier decision in the light of that fresh medical evidence. 
[5]
This appeal therefore requires the Court to consider whether the respondent's letter of 5 February 2008, made in response to that request, was a decision within the meaning of Section 6 of the Act and thereby a decision for which the appellant was entitled to seek review and, if necessary, appeal. 
[6]
The original request for approval of elective surgery contained in Mr Matheson's application for same dated 26 June 2006 made the following points: 
The Procedure Description was “Arthroscopy, synovectomy, removal osteophytes arthrotomy and removal of loose body LEFT ankle”
A brief history of the injury was given as follows: 
“ … He had a significant injury to his LEFT ankle on 23 August 2003. He got tackled heavily and twisted his ankle and developed quite severe pain in the ankle. His ankle was swollen and he took several weeks to recover. Since then he has been troubled by problems of stiffness and anterior ankle pain. He went fishing over the Christmas holiday period and reinjured the ankle with a minor twisting force. He has been able to play Golden Oldies soccer but no soccer above this level. He feels as though something is catching in his ankle and he has stiffness after rest. He also gets some swelling in the ankle. He has only minor instability. ”
The diagnosis given was: 
“Post-traumatic spur formation and loose body formation left ankle. I propose to carry out a synovectomy and removal of osteophytes arthroscopically but it will be necessary to carry out an open procedure on the medial side to remove the loose bone. ”
[7]
As earlier noted, the respondent's Clinical Advisory Panel considered the application and advised that the medical condition requiring surgery was a pre-existing condition arising from gradual process, which condition had been rendered symptomatic by the covered accident. 
[8]
The respondent's decision was as set out above, and there the matter rested until Mr Matheson provided a report to the appellant's solicitors on 9 January 2008 and which report was incorporated into a request to the respondent for a new decision on the question of surgery costs, it being contended that the appellant's need for surgery was established as being causally linked to the covered injury of 23 August 2003. 
[9]
The relevant passages of Mr Matheson's letter of 9 January 2008 are as follows: 
“The history I subsequently obtained from Mr Scoullar in regard to his left ankle injury was that he had a significant injury to the left ankle on 23 August 2003. He was playing soccer at the time and got tackled heavily and sustained an inversion sprain to his left ankle. He had severe pain and his left ankle was very swollen and took several weeks to recover. He continued to be troubled by problems of stiffness and anterior ankle pain exacerbated by a further twist when fishing over the 2005 Christmas holiday period. 
At my assessment on 25 August [2005] when I had seen Mr Scoullar primarily for his right ankle, I had noted the history of recurring injuries to both ankles, and had noted that Mr Scoullar had laxed lateral ligaments in both ankles consistent with previous lateral ligament injuries on each side. 
I carried out an arthroscopy to Mr Scoullar's left ankle at Mercy Hospital in Dunedin on 22 May 2007. At the time of the operation I noted there was inflammation in the ankle, complete loss of articular cartilage damage on the dome of the talus, a large spur on the front of the tibia which had obviously [sic] rubbing on the talus. The spur was removed and the damaged articular cartilage also trimmed. The articular surfaces in the posterior half of the ankle joint looked satisfactory. There were loose fragments of bone on the inside of the ankle which could not be resected arthroscopically and an open operation was carried out to remove these two (2) fragments of bone. Features of the arthroscopy were consistent with secondary degenerative change associated with recurrent trauma. 
Mr Scoullar has led a very active life as a soccer player and has had recurrent lateral ligament sprains to both ankles going back a number of years. The nature of soccer predisposes to ankle injuries. There is no doubt in my mind that Mr Scoullar has had recurrent ankle sprains and trauma to both ankles as a result of playing soccer and that the injuries have led on to develop post traumatic degeneration and spur formation and loose body formation which has necessitated the arthroscopic procedure carried out on 22 May 2007. I believe that although Mr Scoullar had some pre-existing lateral ligament laxity of his left ankle dating back to recurrent sprains, the significant injury sustained on 23 August 2003 quite dramatically exacerbated his underlying problem and may well have been the major cause of articular cartilage damage and resulted in loose body formation. In my opinion there is a very good case for Mr Scoullar's acceptability by ACC for traumatic injury to the left ankle recurring as a result of recurrent ankle injuries at soccer the most profound being on 23 August 2003. In my opinion, it is very unusual for a fit 40 year old man to develop premature degeneration in both ankles without the antecedent history of one (1) or more episodes of joint or soft tissue trauma to the joint. ”
[10]
The Court has not been informed as to who may have considered this new request from the appellant, but the fact is that by letter dated 5 February 2008, the respondent complied with the appellant's request for a new decision as follows: 
“ACC received a request from your specialist, Mr John Matheson, to pay for elective surgery to your left ankle on 11 July 2006. 
As you are aware, your request for elective surgery was declined on the 27 July 2006. This was because after considering the information available, it appeared that your surgery was required due to a pre existing condition rendered symptomatic by your covered accident of 23 August 2003. 
ACC has reconsidered all the information available, including a letter from Mr Matheson dated 9 January 2008. Unfortunately, I must inform you we do not consider surgery is required as a result of the personal injury you sustained on 23 August 2003. Based on the medical evidence available to us, ACC's decision of 27 July 2006 remains the same; therefore your request for elective surgery to your left ankle remains declined. 
If you have any queries about the decision, please contact me. If you are still not satisfied, you can ask for an independent review of our decision. The review process is outlined in the enclosed Working Together fact sheet. ”
[11]
It is to be noted that although a right of review was mentioned, as stated above, the letter did go on to indicate that the respondent was in fact referring to a right of review of the original decision, and that the time for lodging a review of that original decision was long gone, but that nevertheless the respondent would be prepared to consider a late application if extenuating circumstances could be established. 
[12]
Ms Brown for the appellant submitted that there were two reasons why the respondent's letter was a reviewable decision. Firstly, she contended that the letter from Mr Matheson introduced further and particular medical evidence relevant to the issue of whether the surgery was for treatment of a covered injury, and secondly, that since the respondent's first decision in July 2006, a decision of the Court of Appeal in Ambros had altered the law in relation to the Court's power to consider evidence relating to causation. 
[13]
Counsel submitted that Mr Matheson's report made it clear that the degenerative stage of the appellant's ankle was not by gradual process but rather degeneration by trauma, and the operation was being sought for post-traumatic degenerative change. Counsel submitted that in essence the new evidence was that the appellant's ankle exhibited post-traumatic degeneration and it was that which had been required to be surgically treated. 
[14]
Ms Potter for the respondent submitted that there is no new significant evidence and that what was now asserted was that which had been asserted by Mr Matheson when he first sought approval in 2006. Counsel further submitted that the Court of Appeal decision in Ambros was not a change in the law and that decision had no relevance to the issue in this appeal. 
Decision 
[15]
In essence, the issue in this appeal requires consideration of whether this appellant has the right to apply for a review of the “decision” made by the respondent on 5 February 2008, that in effect it had considered the matters raised but was not altering the decision which it had earlier made in July 2006. 
[16]
It is accepted law in this jurisdiction that a restatement of a decision earlier made in relation to a claim does not thereby become a reviewable decision. Once a decision on the claim has been made, the matter is effectively one of issue estoppel, and the Corporation's response to any subsequent requests for the Corporation to reconsider its earlier decision do not thereby become further decisions within the meaning of the Act. 
[17]
Having stated that as being the legal principles involved, it is nevertheless the case that where a claimant raises fresh issues or introduces fresh evidence relating to a claim, it behoves the respondent to consider those fresh matters and to reassess its position in the light thereof, and in advising its decision relating to the fresh matters raised, the respondent is taken to be issuing a fresh decision within the meaning of the Act. 
[18]
A fairly clear example of this principle is the decision of this Court in Osborne (Decision 105/06) where after a decision of declinature on a claim for cover was made, subsequent medical evidence, not available at the time when the first decision was made, was presented which identified a completely different mechanism as giving rise to causation of the medical condition sought to be covered. 
[19]
In that case the claim of causation made subsequently was found to be different from that which had been earlier been asserted, and in respect of which the respondent had made its decision. The second declinature was in those circumstances taken as being a decision by the respondent to decline cover after consideration of the new issues of causation which had been raised. It was ruled to be a “reviewable decision”
[20]
In the present case, Mr Matheson's first request for approval of surgery was to treat post-traumatic spur formation and loose body formation in the left ankle. X-ray reports of October 2003 and May 2006 were attached. Those X-rays had identified mild degenerative changes in the ankle joint with some spur formation on the anterior margin of the distal tibia. 
[21]
In the May 2006 X-ray report, the Radiology comment was “Now? post-traumatic OA in ankle and subtalar joint with anterior impingement”
[22]
The respondent's decision of 27 July 2006 clearly identified that the surgery was required to treat a pre-existing degenerative condition that had occurred by way of gradual process. That is, it was contending that the accident of the twisting of the ankle had not caused any of that condition but rather had only rendered it symptomatic. 
[23]
In making that decision the respondent was certainly taking the view which, if the facts measured up, was the correct decision for that claim. 
[24]
The second request was made after surgery had been completed and in his report Mr Matheson identified the various matters which he observed in relation to the appellant's left ankle. He stated that features of the arthroscopy were consistent with secondary degenerative change associated with recurrent trauma. His letter went further to contend that the injury of 23 August 2003, being the covered injury, may well have been the major cause of the articular cartilage damage which resulted in the loose body formation and which was one of the reasons for the necessity of surgery. 
[25]
An interpretation of Mr Matheson's letter would suggest that the traumatic injury of 23 August 2003 had caused the spur formation and loose body formation which had necessitated the surgery. 
[26]
Mr Matheson's report asserts a direct causative link between the ankle injury of 23 August 2003 and the medical condition which he ultimately treated by surgery. 
[27]
This report, I consider, does involve fresh medical evidence sufficient to warrant a proper reconsideration of this appellant's entitlement to receive costs of treatment and that the information provided is significantly more specific in establishing a causative link than that which was asserted at the time the first decision was made. 
[28]
In the circumstances, I find that the respondent's letter of 5 February 2008 did constitute a decision within the meaning of Section 6 of the Act and it is and was a decision in respect of which the appellant was entitled to seek a review. 
[29]
As a consequence of that finding, I direct that the substantive issue raised by the appellant through his counsel in the letter of 28 January 2008, with the supporting letter of 9 January 2008 from Mr Matheson, be now considered at review. That is whether the respondent's decision of 5 February 2008 to decline to meet the costs of that elective surgery was the correct decision on the evidence now presented. 
[30]
The appellant being successful, I allow costs in the sum of $2,000 together with qualifying disbursements. 

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