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Accident Compensation Cases

DP v Accident Compensation Corporation (DC, 10/03/11)

Judgment Text

RESERVED DECISION OF JUDGE P F BARBER 
Judge P F Barber
The Issue 
[1]
Was ACC correct in its 26 August 2008 decision declining to pay weekly compensation to the appellant on the basis that he was not an earner at the time of his incapacity. 
Background 
[2]
On 22 February 2007, the appellant claimed cover for PTSD (Post Traumatic Stress Disorder) arising out of childhood sexual abuse. The claim was lodged by his counsellor, Marion Boyd, who indicated that the appellant was suffering symptoms of post-traumatic stress disorder and depressive disorder caused by childhood sexual abuse. 
[3]
In May 2008, the appellant provided ACC with a medical certificate stating he had been incapacitated for work since 2 September 2006 (the date on which the appellant had last worked) and sought weekly compensation. ACC has notes from the appellant's weekly counselling sessions with Ms Boyd commencing 19 February 2007. 
The medical evidence 
Dr Cornah — general practitioner— 16 May2007 
[4]
In a consultation report, Dr Cornah wrote: 
“1.
Under ACC counsellor Marion Boyd for past sexual abuse. PTSD depression. Needs IDA forms filled in. 
2.
Also to apply for IB, as counsellor feels he needs retraining as he cannot handle building work any more. Tried a month ago, got a new job, and couldn't doit when it came to the first day. 
3.
Sober since October 2006 ”
[5]
The consultation note records a prescription, an ACC claim form and a diagnosis of “depressive episode, unspect”
Dr Mary Warren — general practitioner— 23 May 2007 
[6]
In what appears to be a post consultation note referring to a consultation on 18 April 2007, Dr Warren said: 
“For repeat Sickness Benefit. Depression, mood up and down, poor sleeping, can't get to sleep then early morning waking. Appetite ok. Poor motivation. Counselling once a week, paid for by ACC for PTSD, Depression. Lives with flatmate. Friends — abusing alcohol and drugs so avoiding them. No alcohol since Oct 2006. Smoking tobacco 10-15/day. Has tried part time work — but then severe anxiety, couldn't do it. Poor concentration — sometimes when reading, has to reread pages. No suicidal thoughts or thoughts of harming others. Stopped Fluoxetine some time ago? Need to restart. ”
Dr Schousboe — occupational medicine specialist — 18 July 2007 
[7]
In a Mental Injury Impairment Assessment report, Dr Schousboe gave the whole person impairment rating of 25%. In the overall rating, Dr Schousboe said: 
One cannot reasonably ignore the fact that the claimant had to face a number of traumatic events in his early childhood the apparent lack of appropriate parenting would have contributed to his current situation although it is clear that his diminished self-esteem and self-loathing, depression and the many aspects of post-traumatic stress disorder has its roots on his mother's protracted sexual abuse. In my view 5% impairment is caused by factors unrelated to the claim, whereas 25% can be directly attributable to the claim. ”
Dr Schousboe — 7 August 2007 
[8]
Following a letter from the appellant in which he outlined a number of concerns, Dr Schousboe again wrote to ACC. The appellant's letter had attacked some assumptions he believed Dr Schousboe had made. Dr Schousboe said: 
“I certainly got the impression that Mr P was struggling with many things in life, and I can assure him, I made no assumptions based on the fact he was well groomed at the time I met him. I appreciate that he went to such effort, but I am fully aware how hard these things are for him in daily life. I know he is struggling with many things the rest of us take for granted. ”
Dr Cornah — 15 January 2008 
[9]
In an ARC18 dated 15 January 2008, Mr Pine's general practitioner recorded a diagnosis of depression/PTSD/sexual abuse for which Dr Cornah was first consulted on 16 May 2007. She described the appellant's work capacity as: 
“Fully unfit from 02/09/2006 until present and ongoing. ”
Dr Stone — consultant psychiatrist — 7 August 2008 
[10]
In his report to ACC, Dr Stoner said: “Mr P receives an Invalid's Benefit. The reason for his invalid's status was stated as ‘anxiety attacks’. He last worked in October 2006.” In relation to his alcohol and drug history, Dr Stoner wrote: “His last drink was on labour weekend 2006, he previously drank between 12 to 15 cans of beer per night, suffered from increased tolerance and withdrawal symptoms. The drinking led to 3 DIC charges, history of assaults, and was instrumental in ending his relationship. Mr P was admitted to hospital in 2006 with upper gastro intestinal bleeding as a result of alcohol abuse.” 
[11]
Dr Stoner recorded his overall impression as follows: 
“Mr P is a 42 year old man who lives in rented accommodation with a flatmate. He has a relatively normal work history, running into problems with employment due to alcohol dependence and employment issues (the company he was working for was liquidated in 2006). He suffers from alcohol dependence which is currently in full sustained remission. He decided not to drink following an acute admission with upper gastro intestinal bleeding (a complication of heavy alcohol use). Mr P does have symptoms consistent with that of mild Post Traumatic Stress Disorder, however this has not precluded him from working over many years of his life and completing a successful apprenticeship. He has been engaged with a counsellor for 18 months, and believes that he is ‘going over the same old ground’. Mr P would benefit from occupational direction; he is not rendered incapable of working due to a mental injury to his sexual abuse. ”
[12]
In response to a requirement that Dr Stoner describe how the current mental injury prevents the appellant from carrying out the tasks involved in employment, Dr Stoner wrote: “Mr P detailed some intrusive thoughts, lack of concentration. He has a history of depression; this is currently well treated by his general practitioner. Mr P's mental injury does not prevent him from carrying out tasks involved in his employment, and has a proven work history.” 
[13]
Dr Stoner's summary was: 
“Mr P is a determined man who has assumed the sick role of following his abstinence from alcohol. He is not benefitting from ongoing counselling, and would benefit from a carefully constructed return to work programme. I wish Mr P well in the ongoing process of his rehabilitation. ”
[14]
The appellant has objected to a lot of the comments in Dr Stoner's report and has sought to correct those. 
Medical notes — various 
[15]
ACC spent some time seeking the appellant's medical notes. The appellant had advised that he had discussed sexual abuse with a general practitioner in Palmerston North in the 1980s. 
[16]
The appellant's then GP, Dr Cornah, advised that the appellant first disclosed sexual abuse on 16 May 2007. Attempts were made to find further information regarding these disclosures. There are no available medical records prior to 2005, and no suggestion in any medical record of a history of sexual abuse. 
[17]
The medical notes which ACC has been provided with say, relevantly, as follows: 
18 October 2005: alcohol problem recorded together with family history of depression. The appellant was provided with information on depression and diagnosed as having alcohol dependent syndrome and a depressive episode, unspecified. 
31 January 2006: Fluoxetine prescribed. Notes redated so it is not clear whether this is the first prescription, or what was, or led to, the relevant diagnosis. 
23 January 2007: depression recorded and the appellant's attendance at counselling recorded. Notes record ‘trying to reconciliate with wife, no ETOH, no suicidal ideation’. ”
Marion Boyd — counsellor— 5 September 2008 
[18]
In an ACC 291 — Counselling Progress/Completion Report, Ms Boyd said under the heading “general comments”
“I am very concerned about the recent psychiatric report completed for ACC. DP's depression has returned and he has been significantly triggered as he feels he. was .treated as if he is a malinger, and that he was attempting to procure financial support where it is not valid. It says the DP should discontinue counselling immediately as this is unhelpful to him. I disagree as DP has significant problems. DP also disagrees and says that it has been extremely helpful for him on many levels. Also Dr Stoner that I suggested that he undertake a counselling training course. This is inaccurate. DP had commenced this course approximately 5 years ago and he wished to complete it. ”
Dr Comah — general practitioner— 17 September 2008 
[19]
In a letter to Dr Young, Dr Cornah said: 
“Thank you for seeing DP who apparently requires psychiatric assessment for ACC. He has longstanding alcohol and anxiety/depression issues and apparently also suffers from PTSD. He has been on the Invalid's Benefit for a while and gets counselling. When he last attempted to work, he became very anxious with panic attacks. He was sober for almost 2 years but relapsed for 2 days a couple of weeks ago while trying to cut down his fluox. He is back on 60mg fluox. I'm afraid I don't know much more, he has tended to discuss his mental health with his counsellor rather than me. I do have the first ACC psychiatric report if you would like to see it, but I believe he is asking for a second opinion, yours, so I haven't attached the report. ”
[20]
However, on 1 October 2008 Dr Young responded to say that the appellant had cancelled his appointment with her. 
Marion Boyd — counsellor— 28 October 2008 
[21]
In a response to a peer review dated 7 October 2008, Ms Boyd says: 
“The benefit of counselling for DP have been that firstly, he has been able to stop drinking completely, after abusing alcohol every day for 30 years. Secondly, he believes the relaxation and breathing techniques he has learnt have been helpful in reducing the anxiety attacks. Thirdly, he has learned useful self-care strategies that help to manage the depression and anxiety, but keep him safe from using alcohol. 
Fourthly, DP says that he hated himself and blamed himself for all his failures in his life, including school failure, being such a problem he was placed in a Boys Home for problem boys, his drinking, and his pattern of abusive relationships. He now has some understanding of how history played a role in his developmental trajectory, and his self blame and self hatred are reduced considerably. Fifthly, DP has a pattern of relationships with manipulative and abusive women and he has just managed to extricate himself from the last of these. ”
Mediated agreement — 26November 2008 
[22]
Following a mediation with ACC, the parties agreed that ACC would seek further historical information about the appellant's treatment. In particular: 
[a]
ACC would contact the counsellor for clinical notes of the appellants initial visit; 
[b]
The appellant's lawyer would contact his general practitioner for any medical history available; and 
[c]
Another psychiatric assessment would be obtained if further medical information was available. 
[23]
ACC has since been provided with a copy of notes taken by Marion Boyd during counselling sessions, the first of which is dated 19 February 2007. It is not clear whether there are any earlier counselling notes. 
Dr Bell — Sensitive Claims Unit medical advisor— 26 November 2008 
[24]
The file was referred to Dominic Bell, the medical advisor of the Sensitive Claims Unit for review, with all relevant clinical documentation having been provided to him in relation to the issue at hand. Dr Bell stated in a memorandum dated 26 November 2008 that: 
“This claim would appear to have been granted cover by ACC on the basis of an ACC290 report, dated 22/2/07. The covered personal injury appears to be PTDS and depressive disorder (as per that report). Having now reviewed some good quality GP notes provided (that in fact largely precede the date of the ACC209), it appears clear that this claimant does not suffer PTSD as there is no documentation of any, or enough symptoms to fulfil criteria to enable this diagnosis to be applied. I note, of course, the IA report by Dr J Schousboe (19/7/07) states PTSD to be suffered, but it must be said that IA assessors take it as a ‘given’ that cover for a claim, and its associated personal injuries, is intact. Issues of causation and validity of diagnosis are not addressed, or considered (in any light of uncertainty of causal connection) in the usual course of events with IA reports). 
Thus, based on all of the above, and with very full GP notes provided, it is my view that this claimant's overriding mental health status is dominated by a depressive disorder and its associated symptoms. This disorder has clearly been suffered by this claimant for some time prior to lodgement of this claim. It is well recorded in GP notes prior to the ACC 290 being presented that the claimant had a genetic predisposition to suffering depressive illness and a number of stresses were contributing to symptoms. Quite critically, none of these stresses is noted by GP to be historical sexual abuse, so there is nothing in the GP notes that can cause ACC to backdate the current ‘date of accident’ for this claim (of 29/1/07), and this will infer (of course) that consideration of any incapacity under this claim cannot be any earlier than this date. This issue aside, however I see little (if any) medical evidence on file that directly links this claimant's depressive disorder in cause to the stated sexual abuse. For this reason I feel cover for this claim must remain in some doubt. ”
[25]
Under the heading “Recommended Action”, Dr Bell said: 
“Based upon my review of this file (and its clinical content), I believe that whilst this claimant may well suffer a working incapacity owing to mental health problems that are dominated by symptoms of depression, that a direct causal link between the said depressive illness and historical sexual abuse is not established, and furthermore, there is no medical evidence on file that proves this claimant to also suffer PTSD. ”
Dr Tremewan — Independence Allowance Assessment — 19 April 2009 
“DP states that he recently got his Social Welfare back which brought back a lot of memories of his mother. He says that he has used alcohol to forget his problems but is not currently drinking. He has had a lot of difficulties with relationships, and suffers frequent flashbacks and anxiety attacks. He has also suffered from depression and suicidal thinking. He is currently unable to work and says that he has a lot of trust and avoidance issues. ”
[27]
Summarising the Estimated Whole Person Impairment, Dr Tremewan said: 
“This impairment is clearly in a significant part of a result of this claimant's history of sexual abuse. However, there are also a number of factors which have contributed to this impairment. He had a very difficult childhood when, in addition to the abuse from his mother, he also had a father who was emotionally and physically abusive towards him. His parents separated when he was 5 years of age but he later had problems with his stepfather, who came into the family when DP was in form 1. DP was exposed to violence between his mother and stepfather. These factors clearly impacted on DP's self-esteem and socialisation. His mother's history of alcohol and drug problems also indicates a genetic propensity for the development of this illness. It is well established in the psychiatric literature that there is a genetic component to the development of alcohol and drug dependence. It is my clinical evaluation, taking into account the history of my examination of the complainant, and with regard to my clinical experience, that the above factors by themselves would have caused ‘mild impairment, independence not fully effective or sustainable in some areas of function’ in the low range and rated as 13% whole person impairment. The ACC User Handbook requires this percentage to be deducted. ”
[28]
Dr Tremewan's final whole person impairment rating was 27%. 
DP — letter— 17 June 2010 
[29]
In a letter dated 17 June 2010, the appellant said: 
“The actual first date of disclosure to Marion Boyd (counsellor) was on Wed 6th Dec 06. This was the first time that I ever met Marion. By the time that I finished work, went through a deep bout of depression, got arrested and through the court process I was referred to her ”
Relevant law 
[30]
Section 21 of the Act provides cover for mental injury caused by certain criminal acts as follows: 
“21 Cover for mental injury caused by certain criminal acts 
(1)
A person has cover for a personal injury that is a mental injury if— 
(a)
he or she suffers the mental injury inside or outside New Zealand on or after 1 April 2002; and 
(b)
the mental injury is caused by an act performed by another person; and 
(c)
the act is of a kind described in subsection (2). 
(2)
Subsection (1)(c) applies to an act that— 
(a)
is performed on, with, or in relation to the person; and 
(b)
is performed— 
(i)
in New Zealand; or 
(ii)
outside New Zealand on, with, or in relation to a person who is ordinarily resident in New Zealand when the act is performed; and 
(c)
is within the description of an offence listed in Schedule 3. 
(3)
For the purposes of this section, it is irrelevant whether or not the person is ordinarily resident in New Zealand on the date on which he or she suffers the mental injury. 
(4)
Section 36 describes how the date referred to in subsection (3) is determined. …  ”
[31]
Section 36 deems the date on which the injury occurred in the following terms: 
“36 Date on which person is to be regarded as suffering mental injury 
(1)
The date on which a person suffers mental injury in the circumstances described in section 21 (or 2181 is the date on which the person first receives treatment for that mental injury as that mental injury. 
(2)
The date on which a person suffers mental injury because of physical injuries suffered by the person is the date on which the physical injuries are suffered. 
(3)
In subsection (1), treatment means treatment of a type that the person is entitled to under this Act or a former Act. 
(4)
This section does not apply for the purposes of clause 55 of Schedule 1. ”
[32]
The word “suffers” is defined as follows: 
‘suffers’ is affected in its interpretation by — 
(a)
section 36 and clause 55 of Schedule 1, when it is used in relation to mental injury; 
(b)
section 37 and clause 55 of Schedule 1, when it is used in relation to personal injury caused by a work-related gradual process, disease, or infection: 
(c)
section 38 and clause 55 of Schedule 1, when it is used in relation to treatment injuryor personal injury causedby medical misadventure. ”
[33]
ACC's obligation to pay weekly compensation is set out in cl 32 of the Schedule 1 to the Act. Clause 32 provides: 
“32 Corporation to pay weekly compensation for loss of earnings to claimant who was earner 
(1)
The Corporation is liable to pay weekly compensation for loss of earnings to a claimant who— 
(a)
has an incapacity resulting from a personal injury for which he or she has cover; and 
(b)
was an earner immediately before his or her incapacity commenced. 
(2)
The claimant is entitled to weekly compensation for loss of earnings— 
(a)
on and from the day after the first week of incapacity ends; and 
(b)
for any period of incapacity, after that first week, resulting from the personal injury for which he or she has cover. 
(5)
The amount of weekly compensation payable to the claimant must be adjusted in the manner provided in section 115. 
(6)
In this clause, earner includes a person who has purchased weekly compensation under section 223. ”
[34]
The word “immediately” in cl 32(I)(b) is to be construed strictly: Hardy (256/02), Vasquez (146/96) and Verma (208/04)
[35]
In BRM (224/04) the appellant claimed cover in respect of four separate instances of sexual assault, two of which had been on repeated occasions. On appeal, counsel for the appellant argued that the appellant's first treatment should have reasonably been regarded as occurring at the time of the psychiatric assessment carried out for the purposes of a separate District Court criminal proceeding. However, Judge Ongley found: 
“The phrase in section 36 ‘the date on which the person first receives treatment for that mental injury as that mental injury’ is not capable of a purposive interpretation in the way that section 149 [of the ARCI Act 1992] was. 
There is some logic in fixing a date for compensation as the time on which the effect of the mental injury is sufficiently serious or obvious that the person seeks treatment. The problem created by section 36 is that it does not prescribe a date for commencement of compensation, but an assumed or artificial date on which the injury is deemed to have occurred. The same approach is taken in section 37 concerning work related gradual process injury and section 38 concerning medical misadventure. 
Regrettably there can be no adjustment of the appellant's date of injury as it was determined by the Corporation. In short, the Act fixes a date under section 36 as a matter of legislative policy. That date has to be used as the date of injury for calculation of entitlements and conditions qualifying a claimant for compensation for mental injury caused by a criminal act. ”
[36]
Judge Beattie considered the same issue in Cameron (218/07). He said: 
“ … it is clearly the case that incapacity, being an earner and suffering personal injury are all required to be present if a weekly compensation entitlement is to arise. 
Clause 32 is specific and it can only be the case that incapacity can arise from the personal injury and that incapacity cannot precede the fact or date of the personal injury. 
There is also another difficulty with the plaintiff's argument in relation to post-traumatic stress disorder. The exception in s 21A only relates to mental injury arising as a result of certain criminal acts. Although post-traumatic stress disorder could constitute a form of mental injury as defined in section 27, in order to qualify as a mental injury for the purposes of the compensatory scheme relating to criminal acts, and hence attract an exemption under section 21A, the injury needs to be specifically linked to one of the criminal offences listed in the relevant Act. At the time the diagnosis of post-traumatic stress disorder was made in this case, the primary focus of the plaintiff's counselling was on parenting issues and crisis management. Although some mention was made at that time of her sexual abuse, the treatment was not ‘for’ the sexual abuse in any specific sense; it was for parenting issues. This distinction is critical given that, for the purposes of section 21A in line with the parallel requirement in section 36 of the 2001 Act and section 44 of the 1998 Act the treatment must be ‘treatment for that mental injury as that mental injury’ — in other words, in respect of the mental injury, which has arisen as a result of the specified criminal act. ”
[38]
In MJR (163/09) the Court said: 
“Section 36(1) is specific to mental injury suffered as a consequence of a Schedule 3 crime, and I find it must be implicit in the word ‘treatment’ in section 36 that it is treatment received for the mental injury suffered as a consequence of a sexual crime. That implication requires that the medical practitioner treating the claimant has knowledge of the events which have caused the injury which she/he is being asked to treat. 
In that context I find that the mere observation of depression by a medical professional such as Dr Robinson, cannot fit into the category of providing treatment for a mental injury caused by a Schedule 3 sexual act if there is no knowledge of those circumstances in the possession of the treating health professional. 
This court can take cognisance of the fact that depression, sufficient to be identified as a mental injury within the meaning of the Act can arise from a myriad of causes, many of which would not be from causes which would be a covered personal injury, and it is for this reason that I find section 36 must have a pre-requisite that the treating health professional has knowledge of the nature and cause of the mental injury which that health professional is being asked to treat. ”
[39]
MJR was the subject of an application for leave to appeal, which was granted. The appeal was to be heard on 22 October 2010 but was settled prior to that hearing. 
Submissions from the appellant 
[40]
The appellant seemed to be putting it that men suffering sexual abuse may turn to overuse of alcohol as a coping mechanism. That seems rather likely. 
[41]
He said he had concerns regarding the treatment he had received from ACC and Dr Stoner. He seemed to be criticising an ACC case manager as not understanding his problems. He seemed to be saying that there were reasons why he had refused to talk about his history of abuse “after Dr Stoner's report came out and the effects it had on me”. He seemed to very much disagree with Dr Stoner's opinion that he, the appellant, was fit for work. He seemed to be saying that he has simply not been listened to and that ACC has made no effort to help him. I observe that the type of abuse suffered by the appellant has not been outlined to me; nor do I know when it took place. 
[42]
The appellant is currently on the Invalid's Benefit and is classed by WINZ as unfit to work. That has been so since November 2006, apparently, after assessment by assessors independent from WINZ. 
[43]
He also seemed to be saying that ACC's arrangements for having him assessed were incompetent so he would not cooperate, and that he disagreed intensely with Dr Stoner's findings that he has been retraumatising his sexual abuse experience. He asserts that no one will help him. 
[44]
The appellant strongly submitted to me that he made disclosure of his alleged abuse injury on 6 December 2006 but that was not recorded by his ACC counsellor because he was then seeing her about another matter; but that he did then disclose his sexual abuse problem to her. 
Discussion 
[45]
Mr Hunt noted that the appellant's letter of 17 June 2010 asserts that he first disclosed the abuse situation to Marion Boyd, the ACC counsellor, on 6 December 2006. However, he was then seeing her about another matter and she did not record any disclosure of abuse. There does not seem to me to have been compliance with the principles outlined, and set out above, in MJR. The appellant was not receiving treatment for mental injury based on abuse when he attended his counsellor on 6 December 2006 and was then seeing her about his alcoholism. 
[46]
Mr Hunt emphasised, inter alia, that the aspect of capacity or incapacity of the appellant is simply a question of evidence; and that, as at 2 September 2006, the appellant's GP supports the appellant being incapacitated. However, Mr Hunt referred to Dr Stoner's opinions and put it that PTSD requires the application of precise criteria. 
[47]
Mr Evans emphasised that I must deal with this appeal on the basis that there is no contradictory medical evidence to the opinions of Drs Stone or Bell so that their medical evidence stands unchallenged. 
[48]
The requirement that the Schedule 3 crime be disclosed is strict. On the present state of the authorities, without specific disclosure of the offending, there can be no entitlement under s 36 of the Act. For this reason, although there is early evidence of depression, this is not sufficient to create a deemed date of injury because there is no disclosure of the cause. Indeed, it seemed to have been assumed that alcoholism was the cause. 
[49]
I agree with Mr Hunt that the first issue for the Court is to ascertain the date on which the appellant sought treatment for his mental injury as that mental injury, i.e. a mental injury arising out of childhood sexual abuse. It is axiomatic that no treatment for that mental injury could have been sought until after disclosure of the abuse. 
[50]
The evidence of disclosure is not clear. The appellant says that there was disclosure on his first visit to Marion Boyd on 6 December 2006 following a referral by a Court in November 2006. However, there is no independent corroboration of this position. Ms Boyd's notes, sought pursuant to a mediated agreement dated 26 November 2008, start from 19 February 2007 and the appellant's application for cover was made in January 2007. The appellant has not been able to bring any other evidence to show that Ms Boyd was aware of his history prior to this date. 
[51]
Record of the abuse by a medical practitioner did not occur until 29 January 2007. 
[52]
However, this factor is not in itself of particular significance because, on the appellant's own evidence, his first disclosure was made in December 2006; and he had already ceased employment from 1 September 2006. Accordingly, even if the incapacity commenced in early December 2006, the appellant did not then meet the criterion of cl 32 that he was an earner at the time that the incapacity commenced. This is because under s 36(1) his date of the relevant mental injury is the date he first received treatment for that. 
[53]
Adopting a strict construction of cl 32 of Schedule 1, even if the appellant had sought treatment for his mental injury, as that mental injury, on 6 December 2006, he would not have been an earner at the time he suffered the injury, because he had finished work on 1 September 2006. 
[54]
As Mr Evans also put it, this case can be distinguished from some cases where the mental injury is simply diagnosed as, for example, depression. In this case, some medical practitioners had diagnosed the appellant as having suffered PTSD. That diagnosis is, in fact, doubtful for the reasons identified by Dr Bell in his 26 November 2008 memorandum, and by Dr Stoner on 7 August 2008; but irrespective of that, it would be necessary to identify some traumatic cause, i.e. sexual abuse, before it could be said that a PTSD diagnosis could be made, because without knowledge of the traumatic event, there could be no proper diagnosis of PTDS. 
[55]
There is a further issue, arising from ACC's decision letter of 26 August 2008, namely, ACC noted that not only had the appellant not been an earner at the time he sought treatment for his covered personal injury in January 2007, but that he had been assessed by Dr Stoner on 7 August 2008 as capable of working and as: “not rendered incapable of working due to a mental injury due to his sexual abuse”; and that “his mental injury does not prevent him from carrying out the tasks involved in his employment”
[56]
The conclusion that the appellant was capable of working, at material times, relies primarily on the opinion provided by Dr Stoner, to whom questions about actual incapacity were directly addressed, and by Dr Bell in his memorandum dated 26 November 2008 as set out above. Dr Stoner, in particular, questioned whether there was in fact any incapacity whatsoever and suggested that a return to work would be the appellant's best treatment. 
[57]
This issue was directly addressed by the Reviewer (Mr D Walker, of Christchurch) who noted that the main evidence on the point regarding the appellant's incapacity was that contained in Dr Stoner's report. He noted that the appellant had many objections to that report, but that Dr Stoner had stood by it, when those objections were referred to him. The Reviewer concluded in these terms (page 7 of his decision): 
“ … I also find the personal injury for which Mr P has cover has to incapacitate him. ACC accepts he is covered for mild post traumatic stress disorder. However, it is whether this injury is also the cause of Mr P being unable to work that is also an issue. 
I consider that despite Mr P's many misgivings, I see no evidence that contradicts Dr Stoner's opinion. However, even if I discount Dr Stoner's report, I see no medical evidence that positively asserts that Mr P's covered injury is a likely cause of his incapacity. Ultimately, this means that Mr P has not produced medical evidence from a duly qualified health practitioner showing that he is incapacitated. ”
[58]
That reasoning of the Reviewer seems logical to me. The Reviewer noted that there was evidence that steps had been taken to arrange to have a further psychiatric report prepared, presumably contesting the conclusions reached by Dr Stoner, but nothing came of this. 

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