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Accident Compensation Cases

Ta v Accident Compensation Corporation (DC, 19/04/16)

Judgment Text

RESERVED JUDGMENT OF JUDGE A N MACLEAN 
Judge A N MacLean
[1]
On 21 March 2014 Dr David Ritchie of the Helios Integrative Medical Centre lodged a claim form for the appellant describing an injury as “hit elbow against table and wrenched right arm. Pain whenever she lifts since”. The injury date was specified as 25 January 2014 and the diagnosis was “sprained shoulder/upper arm”
[2]
The respondent on 25 March 2014 granted cover, noting it as a “employee's work-related injury claim”
[3]
Relevant events in the lead up to and after, the lodging of the claim are as follows: 
The appellant did not consult with her general practitioner until 12 February 2014. On that day she was dealt with by an American trained doctor, Dr Carson. In a patient consultation note of the same date the doctor recorded: 
“Owns restaurant, lifts heavy crates from time to time, has right elbow pain with overuse c/o frequently HA's, d/t overload … also pain in and around right arm/armpit/shoulder blade/neck with difficulty breathing. ”
Dr Carson arranged an x-ray with a diagnosis, “tendonitis right elbow/wrist”
For reasons that were clarified at the hearing, in fact, the x-ray carried out by Dr Young of the Christchurch Radiology Group was of the chest and hand area with no issues arising of consequence, relevant to the issues in this appeal. It turns out there must have been some sort of misunderstanding as to what was to be x-rayed, but the end result is that there was never an x-ray of the right elbow ever undertaken, which in hindsight may well have made it easier to resolve matters. 
Dr Carson was consulted again on 21 March 2014, with respect to right arm issues and the consultation note dated 26 March 2014 noted: 
“Complains of RUE/shoulder/neck pain. Osteo scheduled. Physio. Describing sleep disruption. ”
Following the acceptance of cover by the respondent for sprain of the shoulder and upper arm Dr Carson issued a non ACC medical certificate regarding unfitness for work for three works. 
On 10 April 2014 the respondent requested further information about the claim from the appellant, and from Dr Ritchie, together with copies of all relevant notes relating to the covered injury of 25 January 2014. 
The respondent's Branch Medical Advisor Dr Ames, was asked to comment on the information available, primarily GP consultation notes, radiological records and osteopathic treatment records. 
Key extracts from his report include the following: 
“There is no mention of the table incident and examination shows tenderness to pressure in the right shoulder girdle area. Right Tinnels and Phalen's signs said to be positive but it does not state where they were done. An x-ray was ordered along with blood tests. … x-ray reported normal hand views but noted mild enlargement of the heart …  
The next consultation was 21/3/14. The presenting complaint was pain in the right calf. The ACC45 was filled out at this time but I cannot see why as there were no clinical notes made. 
On 26/3/14 there is a consultation which notes right upper extremity pain — shoulder and neck pain. Mention of osteopathic treatment being scheduled and then physio. Sleep disruption noted. There is then the comment about changing to diclofenac (? from what) and nothing else. I could find no other notes other than a non ACC medical certificate being issued. … osteopath notes date from 27/3/14. The present complaint is pain across the right upper chest into the right shoulder and arm in general. Headaches noted. There is mention of the earlier table incident. … in the first instance I find it difficult to see that an injury — noted as a shoulder sprain — has actually occurred. There are no contemporaneous clinical notes. The claim was lodged some two months after the event and done so with no clinical information recorded. GP notes are not the best and don't really indicate much attention has been paid to the right upper quadrant or limb other than ordering an x-ray. There is no x-ray or other imaging of the shoulder per se. second, irrespective of there being an injury or not there are no clinical records that indicate a cause of incapacity. ”
The respondent wrote to the appellant on 24 June and advised the claim for weekly compensation was declined and there would be a suspension of further entitlement to treatment from 8 July 2014. That decision has not been challenged. 
Further general practitioner notes were sent to the respondent and Dr Gresson, Branch Medical Advisor, commented on 15 July 2014: 
“Clinical information reviewed which indicates confusing reporting and documentation from the outset. Client presented with a chest pain and right elbow pain. X-rays ordered included both hands but the indication for this is not obvious. GP prescribed prednisone and antibiotic but again the indication for this is unclear. I agree with the previous BMA comment and do not consider the new information changes the decision to decline ongoing entitlement. ”
On 10 September 2014 Dr Ritchie (in the same practice as Dr Carson) answering specific questions from the respondent case manager said: 
“1.
Her diagnosis is neck and shoulder strain — secondary to heavy lifting. It was Dr Carson — not the osteopath who initially suggested she need time off to resolve the strain although I was mistaken that the osteopath suggested time off in July/August. I think it was a reasonable decision at that stage to try a further period of rest to resolve the problem. 
2.
At present Kim is having no further treatment. She has been advised against heavy lifting. 
3.
I have suggested that she see an experienced physiotherapist … there is no indication that this is more than a muscle strain. There are not red flags. ”
On 16 September Dr Alistair Wilson, Branch Medical Advisor commented on Dr Ritchie's letter and concluded that the ongoing symptoms were not causally related to the 25 January 2014 injury because amongst other things: 
“(a)
There was a delayed lodgement of eight weeks. 
(b)
There was no incapacity when the injury was lodged. 
(c)
The client has a history of bilateral shoulder and neck problems and questioned whether unrelated to injury. 
(d)
Incapacity appears to relate to other medical non injury related conditions. ”
He recommended declining incapacity from 28 April 2014 due to insufficient evidence that this was due to a covered injury, a right shoulder strain sustained six months prior. 
Accordingly the respondent in a letter of 6 October said in a letter to the appellant: 
“Thank you for your application for weekly compensation lodged with ACC on 28 July 2014 for the injury that occurred on 25 January 2014. ACC has considered all the information available and finds that you are not entitled to weekly compensation because there is no evidence that your need the time off work was due to your covered injury. As a result ACC is unable to pay you weekly compensation. ”
[4]
The applicant on 8 January lodged an application for review seeking a one off payment for the four weeks that she took off work. That is the decision which underlies this appeal. 
[5]
The review was heard on 3 March with a decision delivered on 13 March by Mr Clayton. 
[6]
He heard evidence from the appellant confirming she had hit her elbow on the corner of the table. The reviewer noted the significant amount of confusion surrounding the events, including the delay in seeking medical treatment with an absence of reference to an accident injury in the contemporaneous medical notes and that no ACC claim had been completed at that stage. 
[7]
The reviewer further noted that when the ACC claim form was lodged in March 2014 with a diagnosis of right shoulder sprain there was no clear diagnosis of elbow injury although he noted that the appellant was: 
“Adamant that she did not experience shoulder symptoms at the time of her accident and I did not find that Mrs Ta described any action that could be said to be consistent with wrenching her right arm. ”
[8]
After commenting on the lack of reliable medical evidence linking the January incident to the cause of the shoulder injury the reviewer concluded: 
“Overall, I find there is a real doubt and confusion over both the correct mechanism of injury and associated diagnosis of acute accident related injury/injury. The issue before me relates to whether Ms Ta has entitlements to weekly compensation as a result of incapacity. In light of the matters stated above I find it is impossible for me to undertake any realistic assessment of Ms Ta's entitlement to weekly compensation on the basis of the 25 January 2014 injury. The deficiencies in the evidence are not matters that I can resolve in my capacity as a reviewer. ”
[9]
At the appeal before me all that same evidence as was before the reviewer, was available together with an additional report from Dr Ritchie, dated 7 May 2015 furnished through the advocate appearing today, Ms Simmons. Dr Ritchie's last letter of 7 May 2015 concluded after noting there had been a degree of confusion as follows: 
“I understand there is now acceptance that on 25 January 2014 Kim Ta hit her right elbow on a bench and that this caused ongoing pain in this elbow. 
It is clear she saw Mia Carson … for pains and disability of her right hand, arm and shoulder. Dr Carson did not focus on the elbow injury and doesn't mention this in her notes. 
Kim Ta has consistently related to me that the elbow injury was the first injury she had that started her problems. 
She is a stoic woman and kept working. She used a number of natural and traditional remedies to try and resolve her pain. 
She continued to work and this work involved heavy lifting of pots in her restaurant but her right elbow, upper arm and shoulder continued to ache. 
Further injury to her shoulder in July is a separate issue and did not result in time off work. 
The pain in her arm and right shoulder is an extension of the contusion injury to her right elbow. She had inflammation and muscle spasm that spread to her upper arm and shoulder. 
Personally I believe that the four weeks of work in March/April last year were justified given that the pain and disability arising from her elbow contusion were not settling. I believe this injury has now settled although further heavy lifting can exacerbate her right arm and shoulder. ”
[10]
At the hearing Ms Simmons, with her client present, spoke to the brief written submissions she had filed dated 15 December 2015. The thrust of the submissions was as follows: 
That confusion arose because when the appellant went to see Dr Carson it was supposed to be a double appointment involving a full checkup namely a full medical checkup, and also the elbow injury question. 
That Dr Carson omitted to fill out an ACC application as she was not familiar with the ACC process having come recently from America. However in time when her regular doctor Dr Ritchie returned this was remedied. 
That she took time off work on advice from Dr Carson. 
That she seeks compensation for four weeks loss of earnings amounting to just under $10,000 plus fees. 
It was confirmed no right elbow x-ray was undertaken and the appellant is concerned that somehow this was overlooked. At the hearing I questioned her as to why she did not pursue that herself. As I understand it it was because she was aware that ACC were going to decline her claim and not fund anything further and that in fact she had actually paid for the original x-ray as well. 
[11]
In summary, the appellant's position is that there is enough evidence to confirm that there was an injury, namely hitting of elbow against a table, that this then manifested about three weeks later, after attempts to self treat into shoulder issues and overall she feels she has not been treated fairly by the respondent. 
[12]
The respondent's position is, that the decision of the reviewer is perfectly understandable and notwithstanding the further information from Dr Ritchie, the situation is still no clearer in terms of an explanation as to the mechanics of how the consequential shoulder injuries and the relationship with the need for time off are connected. 
[13]
In particular points made for the respondent include: 
No matter what the reason, the reality is that an x-ray of the right elbow is not available, and so the option of clarification from that source is gone and the x-ray that was taken out was irrelevant to the particular issue in this case. 
That the end result of analysis of Dr Ritchie's various comments, coupled with the clinical notes at the time, leave a great degree of confusion and have a degree of retrospectivity. 
That what does emerge from the GP notes and comments is that there could well be unresolved and unrelated pain issues at play. 
That it is for the appellant to put forward a clear cogent accident and injury history with appropriate documentation and that just simply is not available in this case. 
Analysis and Discussion 
[14]
It is reasonably clear from both the reviewer's decision, and consideration of the totality of the evidence before me, that the appellant is of a somewhat stoic personality and not one to lightly take time off work. It does also appear that to some extent, the initial GP consultations and follow up let her down somewhat, in that the end result is that there is, as the reviewer noted, and the respondent in my view appropriately, submitted a paucity of information from which this Court could draw a robust inference of a direct causal link between the symptoms displayed leading to time off work and the covered accident on 25 January involving the right elbow. 
[15]
There is no suggestion that the appellant is not telling the truth when she describes her symptoms and the events as they happened. The reality however, is that her evidence is not sufficient to establish a causal link, and the supporting medical evidence that she puts forward does not clinch the matter so far as she is concerned, bearing in mind that the onus is on the balance of probabilities is on her to prove her case. 
[16]
Accordingly the appeal is dismissed. There is no issue as to costs. 
Addendum 
There is a separate matter drawn to my attention for the same appellant under ACR 27/16, currently at the stage after the usual initial direction requiring amongst other things submissions from the appellant by 19 July. At first blush, the factual issues in that claim, although relating to a different review decision. I noted at the conclusion of submissions and evidence on ACR 308/15 that Ms Simmons is not involved in ACR 27/16 and indicated that I thought it best to postpone making any further directions on that separate appeal until I had resolved and analysed the substantive current appeal. 
[17]
I have now perused the file for ACR 27/16, which, as indicated, is at an embryonic stage. The only useful information is the appeal notice itself and a separate review decision from a different reviewer dated 23 October 2015. Perusal of those document indicates that the substantive issue was exactly the same as in the present appeal. The reviewer noted when dismissing the second review application, that the appellant had already unsuccessfully reviewed a decision declining weekly compensation for shoulder symptoms and that the issue before the reviewer on the later review was in respect of weekly compensation for the same period and for the same amount as in the present appeal. The evidence submitted clearly was virtually the same as in the present appeal, save that Dr Turner, a specialist in occupational medicine, had become involved and made an assessment on 22 April 2015 relating to incapacity as a result of the right elbow for contusion. He apparently said that she suffered from regional myofascial pain disorder affecting her right upper limb and her right shoulder and neck and that it was most unlikely that when she struck her right elbow on 25 January 2014 and whatever happened exacerbated her underlying pre-existing pain disorder and did not result in a specific injury lesion (other than a contusion). 
[18]
My interpretation of the review decision is that the critical substantive issue was exactly the same as in the appeal before me, albeit that the question was, under s 103(2) whether the appellant was unable because of her elbow injury to engage in the employment in which she was employed when she suffered her personal injury. The later reviewer concluded: 
“I find that the medical evidence does not establish on the balance of probabilities that Ms Ta's incapacity between 26 March and 16 April 2014 was due to her right elbow — forearm contusion injury. ”
[19]
My preliminary view therefore is that effectively that later appeal is dealing with a res judicata matter i.e. the substantive underlying issue has already been resolved in the present appeal. 
[20]
In the interests of completing the matter as a whole, which I imagine the appellant and the respondent would both like to do, I am now going to change the direction issued in January this year to require the appellant in writing by 30 May 2016 to give reasons why the later appeal ACR 27/16 should now proceed any further for the reasons outlined above. 
[21]
If such submissions are not received in time the matter is to be referred back to me for a decision on the papers and is likely to result in a dismissal for want of prosecution. If a submission is filed, then the respondent will have six weeks to respond to it and the matter can be reviewed from there. 

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