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Accident Compensation Cases

Cole v Accident Compensation Corporation (DC, 11/03/15)

Judgment Text

Judge A N MacLean
The issue before the Court is in respect of a decision by the respondent dated 5 November 2012 suspending the appellant's entitlement to weekly compensation on the basis that there is now no injury related reason to account for her incapacity. 
The appellant has cover for post traumatic brain syndrome sustained following a motor vehicle accident in 1998 when her car was hit from behind by a truck. She also has cover for a minor head injury sustained following another motor vehicle accident in 1981. 
Prior to the later accident she had been working as an acute admission clerk at Auckland Hospital. 
In the years immediately after the accident it was accepted that she was suffering ongoing post concussion symptoms such as headache, memory problems and emotional labity but the general feeling was that while her recovery from the head injury might be slow that in due course she would be able to return to her normal work at the Clinical Records Department. 
She began in November 1999 working initially one and a half hours a day which gradually increased following a series of rehabilitation progress meetings and began seeing Dr Finucane, a psychiatrist. 
By March 2000 having noted a past psychiatric history of suicidal ideation, anorexia and depression Dr Finucane noted that she was suffering from a number of issues some related to depression and some related to traumatic brain injury and the consequences of that. He noted also a relevant past and family history of depression and other related issues including chronic pain. 
By 29 June 2000 the appellant had increased her work to four days a week for five and a half hours a day. 
On 15 March 2001 Dr Finucane noted ongoing “resolving major depression and a persisting post-concussion syndrome”
Dr Finucane continued to be involved and by the middle of 2001 she was working six hours a day for four days a week and he considered her depression was still related to brain injury and other background factors were in remission. 
On his recommendation a neuropsychological assessment was carried out in December 2001 by Ms Levin, neuropsychologist at which stage the appellant was working 30 hours a week. 
By March 2002 that had dropped back to 25 hours a week still at the Clinical Records Department but there were issues for the staff she was relating with due to her “socially inappropriate behaviour”
So she was seen again in March 2002 by Dr Finucane who diagnosed bipolar disorder. Then followed a series of appointments with some improvement in mood but ongoing fatigue problems. Despite that her work hours had built up to six and a half hours a day. 
Things were looking to be improving in terms of work hours through until 2003 and 2004 with continued visits to Dr Finucane. 
By August 2004 following consultation with her employer it was decided on the basis of opinion including that of a Dr Walls, occupational medical specialist that her hours be reduced back down to three hours per day. 
In the years following there was continuing assessment by Dr Finucane. 
In 2012 other neuropsychological evaluations were carried out and Mr Webb a neuropsychologist in April 2012expressed his view as follows: 
“Sustained a mild concussive injury in 1998. The cause of her recovery has been complicated by anxiety, depression and later a bipolar disorder for which she has been under more or less continual treatment. ”
Clearly this refers back to the many visits to Dr Finucane. He concluded that there was no evidence of any cognitive impairment and that her symptoms were “quite atypical for post concussive syndrome”. He concluded “I find no evidence of typical post concussive memory or learning impairments nor any executive dysfunction”
To summarise the position, at that stage evidence was beginning to emerge suggesting that whatever the effects of the post concussive aspects had been, by now they had been spent, and her many and various problems that impacted on her ability to work were not now related to the accident/s but to exacerbation of a previous mental disorder, in particular, bipolar disorder. 
When confronted with this Dr Finucane on 7 May 2012 was still of the view that “she still does have features of a post concussion syndrome attributable to the repeated TBIs”
An MRI scan was carried out in May 2012 and essentially concluded that there were no demonstrated brain changes which could be related to TBI. 
Dr Dryson, the Branch Medical Adviser was also of the view that by then there were no injury related reasons preventing the appellant from returning to work. 
Dr Finucane took issue with those conclusions and in particular commenting on the MRI scan noted that “the minor finding in the left posterior temporal lobe might be an indicator of old TBI that related to her irritability and emotional disregulation but this cannot be stated with certainty”
The Corporation on 5 November 2012 advised that it was suspending weekly compensation payments. 
There is no need to traverse in more detail the differing perspectives of the specialist opinions that were available to the Corporation but suffice to say that as late as June 2013 Dr Finucane still asserted that in his opinion the appellant's mild TBI symptoms had never fully resolved. 
For completeness it should be noted that the appellant over the period since the accident actually moved from her previous job for understandable reasons but had been working up to 20 hours per week in a different job. 
Following an unsuccessful application for review further specialist advice was sought from Dr Kritzinger, a psychiatrist and Mr Webb, a neuropsychologist. Both those experts were of a view that supported the respondent's position. 
So we have a situation where the Court is faced with the conflicting views of on the one hand, Dr Finucane who has had a long period of engagement with the appellant and whilst well aware of bipolar disorder issues remains of the view that much of the symptoms can still be linked back to the TBIs And on the other a number of contrary views 
The Court has made it clear on many previous occasions that the issue is not of whether the appellant is able to return to precisely the same job as she had before but as Judge Joyce QC, DCJ observed in Trent v ACC1
| X |Footnote: 1
[2013] NZACC 244 
the issue is “of getting the covered individual re-engaged substantively in the same (generically speaking) work as the individuals' attitude, skills and experience allowed them to pursue pre-accident”
The respondent here is not asserting that the appellant can necessarily work more than 30 hours a week but simply that the symptoms which she is experiencing which prevent her working on a full time basis are no longer related to her covered injury (the post traumatic brain syndrome) but to her bipolar disorder which is not covered and not attributable to the covered injury. 
The Court is required to make a robust assessment on a probability basis in a situation where there is conflicting specialist medical opinion. 
In my view the weight of the specialist evidence clearly supports the respondent's position. While Dr Finucane has remained consistent in his view that there is still some linkage with the TBI he, through his various reports as time develops is less assertive on the point as contrasted with the very clear views of Dr Kritzinger, Mr Webb, Ms Levin and Dr Dryson. Accordingly the appeal is dismissed. 

[2013] NZACC 244 

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