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Accident Compensation Cases

Legg v Accident Compensation Corporation (DC, 22/09/14)

Judgment Text

Reserved Judgment of Judge J A Smith 
The Review Decision R078681 dated 25 October 2012 is quashed. 
The Court makes directions as set out in this decision. 
Both parties acknowledge that costs are not appropriate in this case. 
Judge J A Smith
Mr Legg filed a review in respect of a decision by Gallagher Bassett (then known as Care Advantage) to refuse cover for a left shoulder injury. The matter was framed in such a way that it appeared he was suggesting that adhesive capsulitis to his shoulder was caused by his fall from a chair in March 2011. 
The parties have been focussed on whether the adhesive capsulitis was caused by the fall. 
It transpires that although there has been a great deal of confusion, this is not the decision made by the Corporation, although it was the decision issued by the Review Officer. 
Date of accident 
The date of the accident is variously referred to as either 16 March 2011 and 15 February 2011. The original ACC Claim Form refers to 15 February 2011. Mr Legg himself refers to the accident as being on 16 March 2011. To avoid continuing confusion, the Datacom Accident/Incident Report refers to 16 March, as does the Datacom Manager's Report. That being the case, for current purposes I will fix the date at 16 March 2011 which is consistent with Mr Legg's submission. 
Sometime after the accident, an application was made by Omokoroa Physiotherapy for an extension of the claim to cover a shoulder injury. This application was made on 5 January 2012 and was for an additional claim. Care Advantage then commenced the process to consider the claim, and in correspondence of 12 January 2012 it was referred to as the left shoulder problem. 
On 26 January 2012 Omokoroa Physiotherapy withdrew their application for extension. However, it appears that Advantage Care, after discussion with Mr Legg, made a decision to continue with the investigation and the matter was referred to Dr Dryson. 
Dr Dryson reached a tentative diagnosis of adhesive capsulitis of the left shoulder and considered that Mr Legg's symptoms were not consistent with a rotator cuff lesion. Mr Legg was referred to a further radiologist, Dr Stewart, who reported that there was no rotator cuff tear or bursal thickening. Dr Dryson's supplementary report of 23 March 2012 then stated that: 
“Ultrasound scan has not shown any evidence of rotator cuff injury … the most likely diagnosis is that of an adhesive capsulitis (frozen shoulder). ”
Dr Dryson then opined that capsulitis could not occur as a work-related injury. 
Care Advantage then issued a decision on 20 April 2012 that stated: 
“ … I regret to advise that your additional diagnosis request, which has been confirmed to be Adhesive Capsulitis of the Left Shoulder, has been declined for cover because there is no evidence to attribute this condition to the fall of 16/03/2011. ”
Mr Legg sought a review of this decision on the basis that it was a work-related personal injury. Unfortunately, his review went on to discuss adhesive capsulitis. However, at hearing before this Court it was clear that Mr Legg argued in the first instance that he had suffered an injury to his shoulder and considered that Dr Dryson's diagnosis was incorrect. In the alternative he considered that adhesive capsulitis could be caused by the fall. 
The Review Decision 
The Review Decision of 25 October 2012 stated that the issue was whether the Care Advantage decision to decline cover for the additional diagnosis was correct. The diagnosis was adhesive capsulitis. The reviewer found that: 
“ … Mr Legg is not able to establish, on the balance of probabilities, that the fall in March 2011 was the cause of his adhesive capsulitis. 
Overall I find that it is not possible for Mr Legg to show that it is more likely than not that there is a causal relationship between his accident in March 2011 and the adhesive capsulitis which developed in November 2011 …  ”
It is clear in this that there was an assumption that Mr Legg had claimed for adhesive capsulitis. This was not the case and it was a diagnosis made by an occupational specialist appointed by Care Advantage. 
I have concluded that it is clear that the Review Officer did not properly consider the review from the decision of Care Advantage. In part, this was because the parties had become fixated on an argument around adhesive capsulitis, rather than whether Mr Legg suffered from an injury caused by the fall in March 2011. Mr Legg says that Care Advantage would not allow him to discuss anything other than the adhesive capsulitis, and he thought that this was the only basis upon which he could advance his review. 
I accept that the matter has become very confused and that both parties have added to this confusion in the way they have drawn their decisions and documented issues between them. 
I have concluded that the Review Officer's decision did not decide the key point between the parties, namely whether or not Mr Legg was suffering from an injury to his left shoulder as a result of an accident in March 2011. 
I consider that the Corporation relied upon Dr Dryson's opinion but subsequently advised Mr Legg that there was no choice but to accept that diagnosis. Mr Legg clearly reviewed the decision as a whole. 
In the circumstances, the matter needs to proceed to Review to find out whether there was a personal injury to Mr Legg's shoulder, and if so, the diagnosis for that. It is clear that the Corporation at this stage still adhere to their view that it is adhesive capsulitis, but Mr Legg does not accept this. 
Therefore, the best course of action is to refer this matter back to a Review Officer, but require a prior independent report on Mr Legg's left shoulder. I direct that this should be by an independent specialist agreed between the Corporation and Mr Legg. This report should be available prior to the matter being set down for hearing of the Review. 
Accordingly, the decision of the Review Officer is quashed. The Court makes directions as set out above. 
Both parties acknowledge that costs are not appropriate in this case. 

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