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Accident Compensation Cases

Wilson v Accident Compensation Corporation (DC, 07/12/11)

Judgment Text

Judge P F Barber
The issue 
Was ACC correct to suspend Mr Wilson's (the appellant) entitlement to weekly compensation because it was not satisfied that his ongoing incapacity for back and neck problems remained due to a covered injury? 
On 16 March 2008 ACC wrote to the appellant advising it had evidence that he is no longer suffering from any physical accident injury, but does suffer a psychiatric condition of conversion disorder which (ACC put it) is unrelated to a covered injury. That letter reads: 
“Entitlement Decision 
As you know, ACC has been reconsidering your entitlement to weekly compensation. We have now received a medical report from Dr Jubilee Rajiah, Consultant Psychiatrist. 
ACC has looked carefully at all the information now available, and has decided that your current condition is no longer the result of your personal injury of 30/12/1996. The medical report stated that the diagnosis is one of conversion disorder and in this regard she agrees with comments made by other medical professionals. The conclusion of Dr De Plessis in December 2005 was ‘In my opinion there is insignificant evidence to conclude that Mr Wilson has incapacitating pain and he has either developed a conversion disorder or is malingering.’ Mr Gillet on 11 October 2006 made the comment ‘I am in substantial agreement with Dr Du Plessis and cannot explain his back pain and disability on the basis of any demonstrable spinal condition susceptible to a clear neurological diagnosis.’ Also Dr Spittle in his report of February 2007 felt the diagnosis was conversion disorder. 
This means that you are no longer entitled to support from ACC. 
ACC has suspended your entitlement to weekly compensation and you will receive your last payment on 13 April 2008. ”
It seems that by “conversion disorder” is meant a psychological problem with pain or some sort of chronic pain with hysterical reaction syndrome. It is defined in Dorland's Medical dictionary (27th edition) as: 
Conversion d. [DSM III-R], a mental disorder characterized by conversion symptoms (loss or alteration of physical function suggesting physical illness, usually of the sensorimotor system, such as seizures, paralysis, dyskinesia, anesthesia, blindness, or aphonia) having no demonstrable physiological basis and whose psychological basis is suggested by (1) exacerbation of symptoms at times of psychological stress, (2) relief from tension or inner conflicts (primary gain) provided by the symptoms, or (3) secondary gains (support, attention, avoidance of unpleasant responsibilities) provided by the symptoms. Many patients exhibit ‘la belle indifference,’ a lack of concern about the impairment caused by the symptoms; histrionic (hysterical) personality traits are also common. This diagnosis excludes patients whose symptoms are under voluntary control (as in factitious disorder with physical symptoms or malingering), patients with the full syndrome of somatization disorder (q.v.), and patients whose predominant complaint is pain (as in psychogenic pain disorder). Called also conversion hysteria and hysterical neurosis, conversion type. ”
The appellant had cover for a neck sprain which occurred on 30 December 1996. He also has cover for a lumbar sprain when he developed back pain while breaking up concrete at work in May 1997. ACC did not initially accept cover for that injury. The matter went to review and cover was awarded in a 7 October 1999 review decision in which the Reviewer noted that the appellant had muscle spasms in his lower back for which he was seen at the physiotherapist on 28 May 1997, and that a diagnosis had been made of a low back strain. The Reviewer further noted: 
“I do note that the physiotherapist on 4 June 1997 said that the low back pain has gone, and it seems that no physiotherapy was required for at least two months after that period of time. ”
From that time the appellant had intermittent problems with his neck and lower back and was referred to a number of physicians. In 1999 he had an MRI of the lumbar spine which showed a minor disc bulge at level L5/S1 but no nerve root compression. He was reassessed in February 1999 and his symptoms had resolved although he still had back discomfort. In 2000 he was referred again to the neurological service and a C5/C6 disectomy was carried out on 13 July 2000. The appellant continued to suffer from symptoms in his neck and lower back. 
Medical Evidence 
In August 2001 the appellant was referred to Mr Theis, orthopaedic surgeon, for assessment. Mr Theis noted on 29 August 2001 that there was no evidence of disc prolapse or nerve root compression. He considered there was no ongoing nerve root pressure in the neck. Mr Theis concluded, inter alia: 
“As far as his lower back is concerned, there were a series of inconsistencies in clinical examination and definitely symptom enhancement and involuntary muscle contraction preventing accurate assessment of his functional ability. I could not detect any abnormal neurological findings in the latest MRI scan of the lumbar spine has been reported as normal. Overall there is a significant discrepancy between his complaints, his disability and the objective findings on the MRI scanning. ”
The appellant was referred to Dr Xiong, who in a report of 9 April 2003 considered that the appellant was suffering from an overwhelming chronic pain syndrome which is clinically not physical and is almost certainly psychiatric or psychological. Dr Xiong noted: 
“In my opinion there are no injury determined factors which are prohibiting him from returning to work and I would totally agree with Mr Theis, orthopaedic surgeon that Mr Wilson does have a work capacity and he should be advised to return to normal work without any restrictions. 
The clinical diagnosis at this stage is obviously very puzzling. His major disability in extreme presentation during the physical examination are certainly of psychological origin or psychiatric condition and the diagnosis are either factitious disorder or otherwise malingering, which is less likely. ”
ACC continued to work with the appellant providing various rehabilitation interventions (speed course, computer training, work preparation course etc). In 2005 he was assessed for his appropriateness to commence a back and motion work preparation programme. The report from the physiotherapist dated 28 July 2005 noted: 
“Michael was able to sit comfortably for thirty minutes during this discussion, however, on commencing the objective assessment; Michael was unable to stand upright out of the chair and experienced a partial collapse of his legs. This occurred three to four times and on each attempt Michael was unable to stand and the objective component of the assessment was rescheduled for a later date. 
Michael returned to 27 July to complete the assessment. He was able to sit in reception and stand from sitting without event, however on commencing the assessment Michael was again unable to stand up without collapsing back into the chair. This occurred another couple of times. At this stage we remained sitting and a ‘Dallas’ pain questionnaire and Roland-Morris questionnaire were read to Michael and completed. Following this Michael again experienced difficulty standing from the chair and experienced a full collapse. Michael recovered and subsequently walking to reception (distance of ten metres) experienced a further three full collapses. ”
In December 2005 ACC referred the appellant to Dr du Plessis, neurologist for assessment. Dr de Plessis' report outlined in detail the medical interventions that had occurred. He noted the inconsistency in findings, in particular between assessments that were undertaken close in time. At page 30 of the report he noted: 
“During the consultation, Mr Wilson was able to sit very comfortably and there was no apparent discomfort noted. However when it was suggested that he be examined, he extremely suddenly started squirming, grimacing and hyperventilating, arching his back and performing several other manoeuvres which he claimed were caused by sudden acute back pain and back spasm. 
It was recorded by several other examiners that a similar set of circumstances developed when he was due for examination and in many instances, the examining doctor seems to have been impressed by the disproportionate reaction compared to the results of the physical examination performed at the time. 
Another factor to consider is the significant discrepancy in physical findings recorded. In one instance within a matter of several days, very different ‘signs’ were recorded when he was examined by Dr Hammond-Tooke and Mr Tyse, the orthopaedic surgeon …  
It was also pointed out by Dr Hammond-Tooke and Mr Theis, that Mr Wilson was not in keeping with the appearance of Mr Wilson in the preceding hour during the consultation, nor the nature and extent of his pathology. 
Also of major importance is the fact that there was no change in his pulse rate during this entire episode of grimacing, hyperventilating, arching of his back, rising and twisting, which would suggest that there was no autonomic response and consequently that the apparent distress he was experiencing was not physiological. ”
Dr du Plessis concluded that the appellant's symptomology was not organic in nature. He then went on to consider whether it was a result of a conversion disorder (hysterical reaction) or whether the appellant was malingering. He noted that looking at what has happened in the past, and the fact that several of the consultants who had examined Mr Wilson had record a significant dramatic “development” of signs suggesting sever distress at the particular time when he is due for a physical examination, suggests that Mr Wilson is deliberately trying to create the impression that there is something severely wrong with him. He said: 
“In my opinion, the fact that it occurs at that particular time and is so dramatic, I would suggest that his condition would be more in keeping with malingering. He appears to be consciously attempting to impress the doctor examining him of the severity of his symptomology and thus the absolute inability for him to be able to be certified fit to return to work. ”
Following receipt of this report ACC obtained comment from Dr Rajiah, psychiatrist. In her report of 13 June 2006 Dr Rajiah diagnosed a chronic pain disorder associated with both psychological factors and a general medical condition. She did consider the possibility of a conversion disorder and differential diagnosis including factitious disorder or malingering. She noted the problem of illiteracy is also an ongoing source of stress and disadvantage for Mr Wilson. She noted: 
“It will always be a potential cause of loss of face and loss of dignity for Michael. He is possibly unconsciously avoiding having to confront this on a day to day basis, by not having to look for work and return to the work force. His physical injury and pain are serving the function of a protective barrier against the humiliation that he might be forced to encounter if he was actively looking for work, and/or working. … His avoidance of work and exaggeration of his symptoms when assessed by specialists commissioned by ACC is possibly to prolong being off work and linked the fear of exposure/having to deal with the day to day problems with being illiterate. Good liaison and co-management by a clinical psychologist and occupational therapist could make all the difference to Michael eventually joining the work force again. ”
ACC obtained a report from Dr Spittle, psychiatrist, dated 26 February 2007. He also canvassed in detail the appellant's history and interaction with clinicians over the years and his diagnosis (set out at page 19 of his report) is that the appellant suffered from a conversion disorder. He considered the differential diagnosis included malingering and noted: “thus the differentiation between conversion disorder and malingering depends on the extent to which it is considered that the symptoms are produced unconsciously rather than consciously.” 
Dr Spittle favoured a diagnosis of conversion disorder given the indication that the appellant exhibited symptoms at times when others were not around. Dr Spittle did not consider that this disorder was caused by any physical injury. He did not agree with Dr Rajiah's diagnosis of chronic pain disorder as he considered this was only appropriate if the symptoms were limited to pain. He noted the appellant's symptom involved motor symptoms (such as collapse) as well as pain and went on to note: 
“Mr Wilson has experienced a number of psychological stresses in relation to his two marriages that ended in separation, his difficulties with reading and writing and his feeling treated unsympathetically by other pupils over this at school, and his difficulties with obtaining employment with his reporting a period of ten years without a job before starting work with Naylor Love. His second ex-wide and son died during 2006. ”
Dr Spittle did not consider that this disorder was caused by the injury. 
Because Dr Spittle's diagnosis differed to that of Dr Rajiah, ACC sought further comment from Dr Rajiah. In her further report dated 15 October 2007, Dr Rajiah agreed with the diagnosis of Dr Spittle that the appellant was suffering from a conversion disorder with motor and sensory symptoms. She also considered the diagnosis of malingering and stated: 
“It is my hypothesis that the driving force for the development of conversion disorder for Mr Wilson is the secondary gain derived from the conversion symptoms. These are the external benefits of a regular income (compensation via ACC) and the added benefit that he is relieved of his responsibility to look for, secure and keep a job. I believe that Mr Wilson's abject fear of not being able to find work, and his shame and humiliation at having to repeatedly expose his illiteracy is intensifying the desire to remain on ACC payments. He has a bleak view of the job market and in this current work capacity. ”
Following receipt of this information and after full consideration of the medical evidence, ACC issued a decision on 16 March 2008 suspending the appellant's entitlements on the basis that his current condition was no longer the result of injury. The decision noted that the diagnosis was one of conversion disorder. 
The Review 
The matter proceeded to Review where the Reviewer (Ms K Stringleman) upheld ACC's decision in her decision of 15 September 2008. The appellant's counsel claimed that ACC was required to issue a decision as to whether Mr Wilson had a covered mental injury. Ms Stringleman accepted that ACC was not required to do so as there was no application for cover for mental injury. She considered the evidence established that the appellant's current and ongoing incapacity is caused by the diagnosed conversion disorder; and that the available medical evidence is that the conversion disorder was not caused by the appellant's physical injury. 
Submissions for the Appellant 
Mr Sara submitted that ACC has failed to discharge its duty to issue a primary decision concerning Mr Wilson's claim for cover of a mental injury caused by the physical injury for which he has cover, and that it was required to do so before suspending entitlements. He also submitted that the Reviewer was incorrect to find that Mr Sara's correspondence with ACC on 5 March 2007 and 8 April 2008 did not qualify as requests for cover. 
Mr Sara noted that ss 56 and 57 of the Accident Compensation Act 2001 detail the steps ACC must take when investigating a claim for cover and the timeframes which apply to making cover decisions. Section 58 provides that if the timeframes in ss 56 and 57 are exceeded, then the claimant is to be regarded as having a decision that he or she has cover for the personal injury in respect of which the claim was made i.e. a deemed decision. Section 64 states that ACC must provide written, reasoned, and reviewable decisions. 
Mr Sara submitted that the Reviewer was clearly wrong to find that ACC was not required to issue a cover decision concerning Mr Wilson's mental injury as (he puts it) the wording of s 64 can only be read as stating that a written, reasoned, and reviewable decision is a mandatory requirement. Mr Sara noted that the Reviewer's decision appears to stem from her view that counsel's request did not qualify as a “formal claim for cover”. Mr Sara then submitted that in Thomas v ACC 278/2008 Judge Beattie found that a letter from counsel requesting cover for a mental injury “must be considered to be a claim for cover in compliance with the claims process as set out in section 48 of the Act”. His Honour further found that such a request for cover gave rise to a situation “where the provisions of sections 56-58 of the Act apply and, in particular, whereby under section 56(5) the respondent has a period of four months in which to investigate the claim and make a decision thereon”
Mr Sara submitted that Mr Wilson has now attracted a deemed cover decision pursuant to s 58 of the Act; and that as ACC's decision to suspend entitlements was made on the basis of Mr Wilson's incapacity being caused by a conversion disorder, for which condition he now has cover (Mr Sara put it), ACC's decision cannot stand. Mr Sara put it that in case it is not accepted that Mr Wilson has attracted deemed cover for his mental injury, ACC was nonetheless under a duty to consider whether Mr Wilson's conversion disorder was coverable before suspending entitlements. 
The issue before me is whether ACC's 16 March 2008 decision stopping entitlements in relation to the appellant's neck strain and back claim was correct. ACC could only do so if it is “not satisfied” on the evidence on file that the appellant had further rights to entitlement on this claim. (Ellwood v ACC [2007] NZAR 205 HCHas Litigation History which is not known to be negative[Blue] ). 
The relevant section of the Act is Section 117 which provides: 
“117 Corporation may suspend, cancel, or decline entitlements 
The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. …  ”
In Ellwood, the High Court said: 
“If the ACC/the Reviewer/the District Court is ‘not satisfied’, then the evidence has not persuaded them that there is a right to entitlements. That may occur where the evidence on the balance of probabilities establishes no right to entitlements. 
Or it might also occur where the claimant has not established on the balance of probabilities that there is a right to entitlements. In that situation (if the evidence was imbalanced or unclear) the ACC would not be satisfied that there was a right — it would be uncertain. 
In the situation where the evidence is unclear or imbalanced, is it reasonable to suspend entitlements? In many cases it may not be. Before entitlements are suspended at ACC's initiative (or that suspension is upheld by a Reviewer or the District Court) ACC should take steps to clarify the position one way or the other. The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence. [Counsel's] proposed test of asking whether there is a sufficient basis on which entitlements should be suspended (in effect terminated) is a reasonable one. If there is an insufficient basis then the test of ‘is not satisfied’ is not met. If there is a sufficient basis then ACC can be ‘not satisfied’ of the right to entitlements. ”
The onus is on ACC to establish, on the balance of probabilities, that the entitlements should be suspended. Did ACC correctly apply the “not satisfied” test in respect of ACC's decision to suspend cover under s 117 of the Act; in particular the test as formulated in Ellwood v ACC
While under the Act ACC need only be “not satisfied” that a claimant is entitled to continue receiving entitlements, I accept that ACC has to make reasonable decisions which, in this context, requires a sufficient basis to suspend entitlements. Accordingly, the “not satisfied” test cannot be met if there is an insufficient basis on which to suspend entitlements. 
I agree with Mr Hunt that ACC has conducted a thorough investigation into the cause of the appellant's symptoms. The reports from Drs de Plessis, Spittle and Rajiah, in particular, provide clear comment that the appellant is not suffering from an organic injury related to his covered injury, but rather a conversion disorder unrelated to his covered injury. Accordingly, ACC was entitled to find that it was “not satisfied” that the appellant had any entitlement to suspend the appellant's entitlements on his neck and back claim. That is the only issue before me but the submissions were extensive and often peripheral to the s 117 issue. 
Cover for Mental Injury 
The appellant has made two submissions in relation to cover for mental injury; first, that ACC was obliged to make a decision on mental injury prior to suspending entitlements and, second, that the appellant is entitled to cover by way of a deemed decision. 
In relation to the first point, it is submitted for ACC that it is not for it to issue a decision on cover for injuries in the absence of a claim for cover; and that decisions on cover are made in relation to claims for cover. ACC's position is that if the appellant wishes to claim for a mental injury then a specific claim should be made. That approach must be correct. 
ACC submits that this is a case which highlights why ACC cannot act unilaterally and make cover decisions in the absence of a claim. The diagnosis is of a conversion disorder (with a differential diagnosis of malingering). Dr Rajiah noted that this was linked to the appellant's “ … abject fear of not being able to find work, and his shame and humiliation at having to repeatedly expose his illiteracy is intensifying the desire to remain on ACC payments.” 
The appellant could not expect ACC to unilaterally decide that the appellant wished to claim cover for the disorder identified by the psychiatrists. Also it was unclear to ACC whether the appellant accepted this diagnosis. Before ACC could issue a decision on mental injury for the appellant there is a need for such a claim and for clarity about the mental injury claimed by the appellant. 
ACC has advised on many occasions that if the appellant is seeking cover, an application needs to be made. The appellant's submissions refer to that part of a 14 September 2009 letter from ACC to counsel for the appellant stating: 
“If Mr Wilson wishes to have consideration of his conversion disorder as being a mental injury because of physical injury he needs to lodge a formal claim for cover. Section 52 of the IPRC Act allows the Corporation to specify the manner in which a claim may be made. In accordance with this Mr Wilson is required to lodge a claim for cover via his General Practitioner, if the GP feels that the conversion disorder is likely to be due to Mr Wilson's physical injury. The Corporation feels that this method of making a claim is a reasonable one for Mr Wilson to be able to comply with. ”
I accept that this remains the best way for the appellant to pursue a mental injury claim if he wishes to. ACC would then issue a decision based on the relevant evidence and any evidence produced on the appellant's behalf. 
Alleged Deemed Action 
This appeal is in relation to a suspension decision under s 117 and not about cover for mental injury, deemed or otherwise. The 16 March 2008 decision under appeal was issued on the appellant's physical injury claim and there is no jurisdiction for this Court to consider/determine a mental injury cover issue. 
The appellant alleges that the email of 5 March 2007 and letter of 8 April 2008, both from the appellant's counsel to ACC, should qualify as cover claims for mental injury. They respectively read as follows: 
“From: Self< 
To: David.O' 
Subject: Michael Wilson 
Date sent: Mon, 05 Mar 2007 09:55:36 +1300 
Hello Dave 
I have been thinking over Dr Spittle's opinion and your indication that Mr Wilson has no mental injury because of his physical injury (which by the way is the legal test). 
There are problems with Dr Spittle's opinion. First he purports to go behind the cover decision for Mr Wilson's neck injury, which he cannot do and neither can ACC accept any opinion based on such error. Second, he appears to think that only some traumatic event must be identified in order for there to be some mental injury. Not so. This, he appears to acknowledge that physical injury may have contributed to Mr Wilson's symptoms as opposed to traumatic events. This satisfies the ‘because of’ test for mental injury. 
I suggest that you should refer Dr Spittle's opinion back to Dr Rajiah for her comment. Otherwise, should ACC issue some formal decision on the matter at this stage of things, I will be obliged to seek review. Please let me know what ACC intends to do here. 
8 April 2008 
P O Box 362 
Attention Darrell Boyd 
Dear Sir 
Re: Michael Wilson 
Thank you for your letter dated 1 April 2008. I refer to correspondence with Mr O'Connor in February and March last year regarding the claim for cover for a mental injury. I am not aware whether any formal decision has been made in respect of the mental injury claim. If a decision has been made please supply me with a copy immediately and if one has not been made then please issue one. 
Yours faithfully 
Peter Sara ”
The email from the appellant's solicitor of 5 March 2007 discussed the investigations and mental injury in general terms. It does not identify an injury that the appellant was seeking cover for. The letter of 8 April 2008 is not a claim either but an assumption that a claim has been made. ACC immediately clarified the position and explained to the appellant what he needs to do to lodge a claim for mental injury. This was re-iterated in the letter of 14 September 2008. 
This appeal is against a decision made on 16 March 2008 suspending the appellant's entitlements under s 117 of the Act. The alleged claim for cover on 8 April 2008 post-dated the suspension decision and is irrelevant to the question before the Court which is whether the appellant has entitlements for physical injury. 
In any event, ACC did not accept that the appellant has lodged a claim for cover for a mental injury. I agree. I accept the comments made by Judge Beattie in Thomas (278/2008), but Judge Beattie made a factual finding, in that case, regarding whether a particular letter was a claim for cover. Whether a claim for cover has been made is a question of fact. Relevant to this determination is s 52 which allows ACC to specify the manner in which a claim can be made as long, of course, as the requirements are reasonable. 
ACC requires a clear claim for mental injury and advice as to what the appellant alleges has caused it. This information would be provided if the appellant would follow ACC's advice about how to lodge a claim. In the absence of this information, any mental injury decision made by ACC would require ACC to speculate on the exact nature of the claim; e.g. whether the appellant was seeking cover for the diagnosis made by Drs Rajiah or Spittle or whatever. Given their reports that would not be an easy or appropriate assumption to make. It would not have been prudent for ACC to infer that Mr Sara or his client were claiming cover for mental injury arising out of an accident. Any institutional knowledge held by ACC (and Mr Sara referred to that) was confusing and rather against the appellant's interests. 
I find that, on the facts of this case, a claim for mental injury has not been made so that there can be no deemed decision. 
ACC's decision to suspend entitlements is supported by a wealth of medical evidence much of which is covered above. ACC's finding of a lack of any ongoing physical injury does not appear to be challenged and seems to me to be correct. This disposes of the appeal issue in terms of ACC's application of s 117 of the Act. 
In the course of investigating the cause of the appellant's symptoms, substantial evidence was obtained including psychiatric evidence. A psychiatric diagnosis has been made but a decision has not been issued as to whether the appellant is entitled to cover for mental injury because no claim for that injury has been made. I have explained that as there has been no claim for a mental injury, there can be no deemed decision. If the appellant wishes ACC to issue a decision on mental injury, a claim should be lodged. 
I agree with Mr Sara that, in terms of Ellwood, ACC must show, on a balance of probabilities, that it ceased the appellant's weekly compensation because it was satisfied on the basis of the information in is possession as at 16 March 2008 that the appellant was not entitled to continue to receive statutory entitlements. 
A prime submission from Mr Sara is that ACC's failure to consider whether the appellant's conversion disorder was a coverable mental injury means that the test in Elwood cannot be met. However, as I have explained above, there has been no application for cover for any such conversion disorder. I appreciate Mr Sara's further submission that when it became apparent that the appellant's conversion disorder was responsible for his incapacity, there was an onus on ACC to consider whether the conversion disorder arose as a result of this covered injury and issue a decision on this matter. I do not see that any such obligation rests with ACC. Section 54 of the Act confers a duty on ACC to make “every decision on a claim on reasonable grounds, and in a timely manner, having regard to the requirements of this Act, the nature of the decision, and all the circumstances”. In this case there has been no claim made with regard to the apparent conversion disorder. 
Inter alia, Mr Sara put it that it was “unreal” for ACC to consider there had been no formal application for such mental injury cover; but the reality is simple: there has been no such claim. 
In my view, ACC has established that it disentitled the appellant because it was satisfied on the information in its possession as at 16 March 2008 that he was not entitled to continue to receive statutory entitlements. Despite the submission of Mr Sara to the contrary, there was no uncertainty for ACC about that nor the status of the conversion disorder. There has been no claim made in relation to the conversion disorder but, in any case, ACC has given the concept of the conversion order issue appropriate consideration. 
For the above reasons this appeal is dismissed. 

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