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Accident Compensation Cases

Karmarkar v Accident Compensation Corporation (DC, 21/10/11)

Judgment Text

Judge D A Ongley
This is an application for leave to appeal from a judgment of His Honour Judge M J Beattie delivered on 28 May 2010, Karmarkar [2010] NZACC 76. The judgment confirmed the respondent's decision that the appellant did not suffer physical injury to the person. 
The claim was a treatment claim for photophobia induced by prescribed Benzodiazepine. 
When it investigated the application for treatment injury cover, the Corporation referred the appellant to opthamologist Professor Philip Polkinghorne. He advised the Corporation that the appellant was likely to have glare sensitivity induced by the use of Benzodiazepines. 
The Corporation then declined cover on two grounds, that the condition was not a physical injury, and that there was not causal connection with treatment. The appellant applied for review and was successful. The Reviewer directed ACC to refer the claim back to Prof Polkinghorne and request his advice “on whether Mrs Karmarkar has sustained a physical injury and or has suffered a physiological change/s or symptoms that have caused her photophobia or glare sensitivity. Also ask him to clarify whether the changes are causally linked to her use of the benzodiazepine drugs from the period 2005-2007.” 
The question was referred to Prof Polkinghorne in those terms, which appears to have assumed that “physiological change/s or symptoms” could not constitute a discrete personal injury. Prof Polkinghorne then advised that: 
“In my opinion, Mrs Karmarkar has suffered physical injury related to her symptoms of glare sensitivity, the cause of which is related to the use of benzodiazepine drugs. ”
No contrary independent opinion has been obtained, and Mr Peart submits that the evidence is therefore in favour of a finding of physical injury. The Corporation did obtain advice from its internal medical advisor, Dr Moughan. In the first place he accepted the opinion that there was a causal link. But he went on to state: 
“If a physical injury is identified, it appears that consideration of the mechanism of injury and frequency of this complication would be necessary in confirming probable causation. I am unable to find reference in the medical literature to a proposed mechanism of injury. ”
The Corporation again enquired of Prof Polkinghorne, who advised: 
“I suspect the physical injury causing the photophobia may well relate to the modulation of neurotransmitters within the retina. I did not identify any pigment epithelial changes when I examined Mrs Karmarkar therefore I do not think this is the cause of the problem. ”
In his judgment, Judge Beattie said this: 
As a matter of fact and law her hypersensitivity is a symptom, or the symptom of the medical condition and it is the condition itself, or the mechanism which has brought it about that requires to be identified as having a physical quality, such as it can be identified as being a physical injury. 
It is unfortunate that when Professor Polkinghorne was asked the question of whether the appellant had sustained a physical injury, he was not given a clearer idea of what, in medico-legal terms, he was required to consider. I find that his first answer does not assist as it really gives no indication of how the condition is considered to be a physical injury. In the follow-up response he refers only to the modulation of neurotransmitters within the retina, and where it can be noted that ‘modulation’ means change in histological structure due to physiological factors. 
Dorland's Medical Dictionary states that histological relates to histology, which in turn is stated as meaning: ‘.. that department of the anatomy which deals with the minute structure, composition and function of the tissues.’ If this is applied to the explanation put forward, namely, modulation of neurotransmitters in the retina, it is referring to a change in the structure, composition and function of the neurotransmitters. 
The foregoing must, of course, be considered against the particular wording which Professor Polkinghorne used, in particular ‘suspect’ and ‘may well relate to’
In terms of whether the mechanism of the appellant's photophobia relates to the modulation of neurotransmitters within the retina, it is only a suspicion by Professor Polkinghorne, and it seems regrettable that neither party in this appeal has sought to have him expand on that, if indeed he can. ”
The High Court authority concerning symptomatic conditions without a detectable injury cause is the judgment of Wild J in Teen v ARCIC (High Court, Wellington CIV 2003-485-1478, 22 September 2003). In that case a central issue was whether the appellant had suffered a personal injury, that is to say a physical injury. The condition in question was variously described as a complex systemic musculoskeletal disorder, or a regional pain syndrome involving altered function and physiology in the central nervous system, or a diffuse myofascial pain syndrome. Evidence given by Dr John Alchin was that: 
“There is no evidence of an injury in RPS such as Mrs Teen has, in the sense of damaged tissue which is visible with the naked eye clinically or at operation, or with imaging techniques such as ultrasound, MRI scans, or under any form of microscope. In that sense there is no injury. However, there is certainly central nervous system dysfunction, e.g. of the pain transmission neurones in the spinal cord. It is probably a question of legal definition whether this altered function (sensitisation) in the spinal cord is an ‘injury’. There are certainly altered neural processes there which explain the clinical features, such as changes in concentrations of chemicals that transmit nerve impulses. It is not however an injury in the normal sense of that term, such as burn, fracture, or hearing loss due to loud noise (which damages nerve cells in the inner ear, which damage is clearly visible by an electron microscope): in which cases there is significant tissue damage. ”
In the District Court in Teen 244/02, Judge Beattie had described the appellant's condition as a pain disorder. In the High Court, Wild J described the District Court Judge's finding of the appellant's condition as a fibromyalgia or regional pain syndrome that “involved a disordering of the nervous system in some unknown way, but not in the way of damage to the nervous system”. Wild J regarded that finding as one that was available to the Judge and one which did not satisfy the requirement for cover as physical injury to the person. 
I have referred to the evidence and findings in Teen because Mr Peart has submitted that it is distinguishable from the present case. In this case there is expert medical evidence of a possible physiological change described as “modulation to the neurotransmitters of the retina”. The evidence falls short of describing the mechanism in terms relative to the statutory requirement of physical injury to the person. The evidence in this case is sketchy compared with the kind of evidence that was scrutinised in Teen
Mr Peart submitted that, in the absence of any other explanation for the mechanism of injury, the expert evidence of Associate Professor Philip Polkinghorne was the only expert evidence before the District Court. He submitted that Professor Polkinghorne's terminology, of “suspecting” a mechanism of modulation to the neurotransmitters of the retina, was sufficient for the Court to find a physical cause, even though he could not express exactly how the causal mechanism works, or could not be scientifically certain. 
Mr Peart submitted that ACC would have had to produce evidence showing some alternative view, that is to say that a tactical onus shifted to ACC. 
The central submission for the appellant is that the mechanism which he described is capable of being a “physical injury to the person” required to satisfy the s 4 definition of personal injury. 
Mr Barnett for the respondent submitted that the “injury” falls into a category of symptomatic disorders without a discrete personal injury. Mr Barnett does not dispute Mr Peart's submission that the Judge decided a question of mixed fact and law. But he submits that the legal test is clearly explained in the Teen judgments and that Judge Beattie applied the law correctly in this appeal. Mr Peart submitted that, since Teen, there has been progressive scientific understanding of microscopic bodily changes that merits further examination by the High Court in the ACC context. It is also an important question as to whether microscopic physiological changes that give rise to macroscopic symptoms should be covered under the ACC scheme. 
It is not for this Court to say that it is time for review of the accepted High Court authority on the subject. That would be a matter for special leave in the High Court. Rather, it is a matter of deciding whether this case raises a question of law that is not the same as the question answered in Teen. Mr Peart submits that it does. He refers to the psychological factors and competing medical evidence that were important in Teen. But the question of law before the High Court in Teen was described in the first paragraph as “whether the appellant suffered a ‘physical injury’. It was answered in the context of evidence that a symptomatic condition without a physical cause was not a physical injury. 
In Teen, Wild J referred to Judge Beattie's consideration of the nature of physical injury, being injury “of or relating to the body as distinguished from the mind or spirit” and involving “physical damage or hurt, that is bodily harm or damage”. But Wild J did not decide what could constitute physical injury in other cases. He found that the Judge was able to reject the evidence of one expert that there was microscopic injury, and reach a conclusion of fact, that the symptomatic pain or disorder of the nervous system was not a physical injury. 
As I read the Teen judgment in the High Court, it was not decided that injury on a microscopic scale will not qualify as physical injury. There is always a practical difficulty that a theory of microscopic injury, in a given case, is often conjectural and difficult to sustain. Where there is insufficient evidence to explain a mechanism at a microscopic level, the question whether such an injury is enough, will not arise. I am not aware of any case where cover for physical injury to the person has been denied because the injury is microscopic. 
If the condition that is claimed as an injury is known only by its symptoms, then evidence of physical injury will depend on a medically plausible explanation of underlying damage. The references to physiological change refer to changes in function of a bodily organism. If a change in function occurs without detectable physical damage, then there is no physical injury. 
In the present case, Prof Polkinghorne suggested what appeared to be a physiological change, by way of modulation of neurotransmitters. 
In my view this case is similar to Teen in that there is a symptomatic condition for which evidence of physical injury is lacking. That was a question of fact. There is an apparent analogy between a disordering of the nervous system, as in Teen, and a disordering of neurotransmitters in the present case. 
Judge Beattie stated that the mechanism needed to be identified. He noted that Prof Polkinghorne had only suspected that there was a physical mechanism, but did not attempt to describe it. The Judge commented that Prof Polkinhorne “was not given a clearer idea of what, in medico-legal terms, he was required to consider”
This appeal did not raise a question whether microscopic injury could qualify as a physical injury. The Court decided that there was insufficient evidence to show the probability of even a microscopic injury. That was a question of fact based on the evidence. 
As a question of law, the Judge held that a physiological change, without evidence of physical injury to the person, is not an injury under the Act. He followed the authority of Teen in the High Court. He considered whether there was evidence of a physical mechanism and found the evidence was not strong enough to support a probability. 
For those reasons, I find that the application for leave does not raise a fairly arguable question of law. The application for leave is refused. 

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