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Accident Compensation Cases

Riley v Accident Compensation Corporation (HC, 22/10/04)

Judgment Text

France J
The appellant was paid compensation by the respondent on the basis he had suffered a personal injury by medical misadventure in terms of the Accident Compensation Act 1982. The respondent subsequently terminated compensation on the grounds that the appellant's medical condition was not attributable to, or caused by, the personal injury by medical misadventure for which the appellant had been granted cover. 
The appellant unsuccessfully sought a review of the decision to terminate and then appealed from the reviewer's decision to the District Court. The District Court, in a decision of 31 October 2003, confirmed the respondent's decision to terminate the appellant's compensation. After unsuccessfully seeking leave from the District Court to appeal from that decision, the appellant now seeks special leave to appeal on a question of law from this Court. 
Although the appellant had cover under the 1982 Act, the respondent sought advice from its medical advisers about the appellant's case on the basis the test in the 1992 Act applied. In particular, the specialist was asked whether the appellant's heart condition was caused “wholly or substantially” by disease, ageing and so on. Under the 1982 Act, cover is available unless the damage incurred is caused “exclusively” by disease, infection, or the ageing process. By contrast, for those with cover under the 1992 Act, personal injury caused “wholly or substantially” by a gradual process, disease, infection, or the ageing process is excluded. It is accepted that the medical advice should have been directed to the 1982 test, but there are still a number of cases like this one where the respondent asked its medical advisers for advice on whether the injury was caused “wholly or substantially” by a gradual process, disease, etc. However, when the matter came to the District Court Judge, the Judge applied the “exclusively” test and said that the “exclusivity” test was met on the evidence. 
The appellant's position is that the Judge's approach was wrong. In particular, the appellant says that where the respondent asks its medical adviser the wrong question that gives rise to an error of law. The respondent says that this is a question of fact, not law. 
The chronology of events is as follows. In 1989, the appellant was found to be suffering from heart disease. He had a valve replacement and by-pass surgery on 30 January 1990. After that operation, he had various problems. In August 1990 he had further artery grafting surgery and a perivalvar leak was stopped. He sought cover under the 1982 Act for injury by medical misadventure. The claim was initially declined but cover was accepted following receipt of a report from Sir Brian Barratt-Boyes. 
The appellant has continued to suffer from angina and is diagnosed as having left ventricular hypertrophy. 
The appellant was reassessed for an independence allowance. The respondent's branch medical adviser in conjunction with a cardiologist, Dr Douglas Scott, reassessed the appellant's condition and concluded that his condition was due to the natural progression of his pre-existing disease rather than from any injury suffered as a consequence of his medical misadventure. On that basis, the respondent on 26 February 2001 decided to suspend entitlements to the appellant. 
The appellant sought a review of that decision and for these purposes obtained an opinion from Dr Gerald Lewis, cardiologist and physician. Dr Lewis provided a report and gave evidence at the review hearing. 
The reviewer found, in a decision dated 11 February 2003, that the appellant had not discharged the onus on him to establish that it was more probable than not that his present condition was causally connected with the medical misadventure. The respondent's primary decision was therefore confirmed. 
The District Court on appeal from the reviewer's decision concluded that the respondent was correct to suspend entitlements on the basis that the appellant's ongoing condition was as a consequence of his pre-existing coronary heart disease, and not as a consequence of any circumstance of injury caused by medical misadventure. The appeal was dismissed. 
Then, in a decision delivered on 10 March 2004, the District Court refused the appellant's application for leave to appeal to the High Court against the earlier decision of 31 October 2003. Accordingly, the present application is made for special leave to this Court. There is no dispute that leave should be granted only if the point of law is capable of bona fide and serious argument (Impact Manufacturing Limited v ARCIC and Burns (High Court Wellington, AP266/00, 6 July 2001, Doogue J)). 
Submissions on leave application 
There are two aspects to the appellant's case. The first relates to the test applied by the medical adviser and the second to the question of causation. 
Essentially, the appellant submits that the medical adviser was asked the wrong test under the wrong Act and this is not good enough when the issue is the removal of a statutory entitlement. The correct procedure must be followed. The appellant submits this must be so given the quid pro quo of the scheme, that is, an individual loses the common law right to sue in exchange for statutory entitlements. The appellant also emphasises the absence of any safeguards otherwise existing around the decision to remove entitlements. 
The appellant relies on the decision of this Court in Gray v Accident Compensation Corporation (High Court Wellington, AP No 250/01, 5 February 2003, France J) where the matter was referred back to the District Court for reconsideration when the medical adviser had been asked the wrong test. 
It is submitted that Gray is based on sound legislative and policy reasons. That is because an expert will be more ready to respond in a general way to a question about “substantially” rather than one asking the medical adviser to focus on the exclusive cause of an appellant's condition. It is submitted that the use of the word “exclusively” sets a very high threshold excluding all other causes of incapacity. That threshold was specifically incorporated into the 1982 Act and the respondent should be required to apply the correct law before being permitted to take away an incapacitated person's entitlement. Given that this is the only remedy the appellant has, it is submitted it is axiomatic that the proper procedures are to be followed. 
Even if the Court finds that the District Court was entitled to accept medical evidence that the Judge considered met the correct statutory test of exclusivity, it is submitted that the finding of the District Court Judge is not supported by the evidence. 
As to the second aspect, that is, causation it is submitted that the District Court erred when applying the principles enunciated in Atkinson v Accident Compensation Corporation (High Court Wellington, AP25/00, 5 October 2000, Ellis J) to the facts and statutory context of this case. That is because, the appellant says, medical misadventure under the 1982 Act was “a different beast” and it was not necessary to show an external triggering event (with reference to Childs v Hillock [1992] 2 NZLR 65 at 70). 
The respondent submits that the cases present a continuum. There are some cases, like Gray, where it would be unsafe to discontinue cover. In other cases, like this one, there are no such concerns. Rather, the present case is one decided on the evaluation of the evidence and no question of law is raised. It is submitted that this case is distinguishable from Gray and various aspects of the medical evidence are emphasised. 
The respondent argues that the District Court Judge has applied the correct test and that on the evidence, the exclusivity test was met. The respondent also relies on the approach of the District Court Judge in refusing leave. 
As to causation, the respondent submits that the District Court Judge was not deciding whether this was medical misadventure or not. Rather, the issue was whether the appellant's accidental injury was the cause of his incapacity as at February 2001. While accepting that under the 1982 Act it is not always necessary to identify a particular causative event, the respondent submits that it is always the case that an injury has to have been caused. Thus, to establish medical misadventure, the claimant must establish that he has suffered “accidental injury” as opposed, for example, to injury by disease. 
District Court decisions 
The District Court Judge goes through the medical evidence and then discusses the legal submissions. It was accepted by counsel for the respondent at the District Court that the test was one of “exclusivity” as enunciated by the District Court in Denzel (262/01) and by the High Court in Gray
The test applied by the Judge is that of exclusivity, hence, the Judge concludes that the medical evidence “clearly establishes” that the appellant has continuing and ongoing heart disease, “none of which is as a consequence of any medical misadventure”, (my emphasis). Later, the Judge describes the heart disease as “the” cause of the appellant's ongoing angina. 
The Judge continues: 
“[27]Looked at in its best possible light, I find that the evidence of Dr Lewis is that the left ventricular hypertrophy may have been aggravated by the prolonged aortic regurgitation, but it is the case that the appellant did have left ventricular hypertrophy before his operation and that condition could not be cured by the operation but neither could further hypertrophy be prevented. 
[28]In the final analysis I find that the situation that this medical scenario discloses is really no different from that which the Court has encountered in countless appeals where a pre-existing arthritic condition, usually to a lower back, is aggravated by a trauma, which is the accident, and which thereupon renders the condition symptomatic and which manifests itself by back pain. ”
The District Court Judge also expressly deals with the submission of counsel for the appellant that the evidence establishes circumstances of an incorrect statutory test: 
“Even though the incorrect test may have been posed by the respondent in a question to Dr Scott, his answer was unequivocal and the evidence which the Court has considered would satisfy the test of the appellant's heart condition being caused exclusively by disease. ”
(para [33])
On the question of causation, the District Court Judge noted that the jurisprudence in relation to s 116 is that eligibility for entitlements ceases when it is established that it is the pre-existing disease or medical condition which is the continuing cause of incapacity. The mere aggravation of the pre-existing condition does not mean entitlements can continue once the particular injury which may have caused that aggravation has resolved. 
In terms of the appellant, it was the heart disease which the Judge found was the cause of his continuing angina. He continued: 
“Whilst the left ventricular hypertrophy is still present, it was caused by his natural leaking aortic valve and in the period between January 1990 and August 1990 when further and undefined hypertrophy may have occurred, it has not been shown to be causative of his condition to the extent that it could be said to be meaningfully associated with the injury by medical misadventure. ”
(para [30])
It was in this context that the Judge accepted the submission made on behalf of the respondent that the principles set out in Atkinson were relevant and that the appellant must show on the balance of probabilities that the condition which he presented at the time the respondent made its decision was caused by the procedures and the injury for which he was granted cover. 
The Judge took the view there was no evidence that the appellant's left ventricular hypertrophy was in fact any greater than that pre-January 1990 or that any such thickening was itself independently causative as opposed to merely being an aggravation of the existing condition. The onus was on the appellant and the Judge found the onus could not be discharged when “at best” Dr Lewis could only say “I can't definitely say ‘yes’ but I don't think anyone could say ‘no’.” The Judge considered Dr Lewis put it only as a possibility and when that was considered against the other specialist evidence which did not make any similar suggestion, the Judge found that the onus was not discharged. 
The matter came before the District Court again on the question of whether leave should be granted and was considered by a different District Court Judge. At the leave hearing in the District Court, the appellant submitted that Gray made it clear that the respondent is a statutory body and can only operate within the prescribed confines of its governing legislation. The District Court Judge noted that the other issue raised was as to the approach to Atkinson. 
The District Court Judge on the leave application said he had considered Gray but noted that the Court there was referring to the particular circumstances of that case. The Judge considered the medical opinion in this case was “considerably different” than that facing the Court in Gray. First, the medical opinion of Dr Scott is not expressed in terms of pre-existing and ongoing disease being a substantial cause, rather, he considered the causation issue on the balance of probabilities and found disease to be the cause. Further, Dr Scott said this not only in response to the respondent's initial question for an opinion but in his subsequent opinion. Secondly, there was Dr Jaffe's evidence, and Sir Brian Barratt-Boyes' observation that the delay between the first and second operations had caused “no irreparable damage”. The Judge continued: 
“It is clear … the [District Court] was mindful that an incorrect statutory test may have been posed by the respondent in a question to Dr Scott. However, he held Dr Scott's answer was unequivocal, and that the evidence which the Court had considered would satisfy the test of the appellant's heart condition being caused exclusively by disease. ”
This was a factual evaluation of the evidence … and having regard to that analysis His Honour found that the appellant had not satisfied the onus of proof upon it to a probability basis. In reaching this conclusion His Honour was well aware of the decision and comments … in Gray
Similarly, the Judge did not consider any question of law could be stated that arises from the issue of causation. That issue, the Judge considered, had been determined in a straightforward way. 
The District Court Judge concluded: 
“I agree, that in certain cases, if the questions that the medical examiner asks have an incorrect legal premise then it might be dangerous to reach a conclusion on any opinion ventured, and in particular, where that opinion impinged on the statutory tests for causation. However, in some case, the medical evidence may be that clear that irrespective of the questions posed, the ultimate causation issue is readily discernible and can be answered. ”
(para [25])
The Judge took the view that not every case will convert an assessment of medical opinion into an issue of law. Leave was accordingly declined. 
There are three issues: 
Is the appellant right that asking the medical adviser the wrong question amounts to an error of law? 
Was the District Court Judge's decision one open on the evidence? 
Does the District Court Judge's approach to causation give rise to a question of law? 
(1)Wrong question asked of medical adviser? 
The problem for the appellant under this head is that the District Court Judge has applied the correct test, that is, of exclusivity, and this is an application for special leave to appeal from that decision. Further, the District Court Judge has expressly considered the issue of the medical adviser being asked the wrong question. 
The outcome, the removal of entitlements, is obviously important for the appellant. However, on analysis, the process involving the seeking of advice from medical specialists is really a process of acquiring evidence, errors in which will not necessarily always give rise to an error of law. While the failure to ask the correct question may, as in Gray, give rise to an error of law that is not necessarily going to be so. The appellant's approach, taken to its logical conclusion, would limit the Judge's role, which is to make some assessment of the evidence as against the correct legal test. The practical reality is that the respondent, if asking the wrong question of its medical advisers, will normally miss and will fail to establish exclusiveness. 
If the evidence is such that the Judge could properly conclude that the test is met that must be a question of fact not of law. This was the approach taken by Miller J in Matthews v ACC (High Court Wellington, CIV-2004-485-170, 1 September 2004) where the Court noted it was clear from the District Court Judge's findings that he considered that “the original injuries now played no causal role” in Mr Matthews' symptoms (at para [9]). The contrast is with Gray, and with Cochrane v ACC (High Court Wellington, CIV-2003-485-2099, 2 June 2004, Miller J). In the latter case, the District Court Judge asked himself the wrong legal test so that is different from this case. 
In Gray I was not setting out a general principle. Rather, I said that case could be dealt with “in a narrow way.” Hence, I said: 
“The way in which the matter has developed means that it has not specifically been addressed on the evidence applying the test the respondent now concedes is the correct test …  
It may be that at the end of the day that the District Court Judge's assessment would be consistent with what a medical expert will say when asked the correct question. However, it is not correct for the appellant's entitlements in the circumstances of this case to be finally determined without the evidence of the medical expert being more specifically directed to the proper test. It is relevant in that respect that the obligation is on the respondent to comply with the statutory requirements before removing entitlements. ”
(paras [12] and [14])
It is noteworthy also that in Gray, the medical evidence itself referred to the “substantial” cause. 
In the end, the appellant is really arguing that the Court is wrong to say that the exclusivity test is met when the question asked of the doctor was whether the “substantially” test was met. That is not a question of law in the present case. 
(ii)Decision open on the evidence? 
The appellant relies in this context on what he says is a change between Dr Scott's initial reply to the respondent and his response when sent a copy of the report from Dr Lewis. In his later response he uses language such as “likely” or even “most likely”. The appellant's submission is that this does not meet the exclusivity test. However, that has to be considered against the evidence as a whole and I set that out in some detail so the total picture is clear. 
As the District Court Judge notes, the relevant hospital records for the appellant of December 1989 and January 1990 showed that he had been suffering from symptoms which were identified as angina since September 1988. An ECG taken in December 1989 showed a dilated left ventricle. The cardiologist at that point recommended that the appellant undergo aortic valve replacement and coronary artery by-pass surgery with grafts to LAD and major obtuse marginal branch. 
Remedial surgery was undertaken on 23 August 1991. Sir Brian Barratt-Boyes described this as being a vein graft to the intermediate artery and internal mammary artery graft to the LAD plus obliteration of the perivalvar leak around the Starr-Edwards aortic prosthesis. 
In reviewing the appellant's file, Sir Brian Barratt-Boyes noted: 
“Failure to graft the large proximal OM (intermediate) artery was an error of judgment on the surgeon's part … Failure to graft the intermediate artery, plus the occlusion of the graft to LAD meant that the patient had benefited only very marginally from the coronary procedure and it was therefore to be expected that pain would recur …  
Mr Robinson noted at the reoperation that there was some aortic regurgitation present (demonstrated by trans-oesophogeal echocardiography at the beginning of the operation as a perivalvular leak). When the valve was exposed this leak was clearly due to a gap between sutures. This was an error in surgical technique. 
Fortunately, the delay between the first and second operations did not result in myocardial infarction so no irreparable damage resulted. ”
Then, on 15 February 1994, Dr Warwick Jaffe, a cardiologist, was asked for his opinion as to the cause of the appellant's symptoms. He said: 
“His problems are the consequence of the heart disease he suffers from. His operation has been a technical success and I do not believe that any of his disabilities are related to any deficiencies in the surgical treatment that he has received. In particular there is no evidence of systolic left ventricular dysfunction, and I do not believe that any of his problems are due to the difficulties in treatment or diagnosis at the times of his various operations. ”
The next development was that in June 1996, another cardiologist Dr Trevor Agnew, gave an opinion to the appellant's general practitioner as to the cause of his heart condition. Dr Agnew advised as follows: 
“I think that his angina is probably caused by sub-endocardial ischaemia related in part to the severe degree of left ventricular hypertrophy which is still present following his aortic valve replacement operation. This is very likely contributed to by independent coronary artery disease. The status of his grafts was investigated in 1992 when all were found to be patent. The situation may have changed with respect to the grafts or alternatively there may have been progression of native disease. ”
Dr Scott, before being asked the wrong question, on 23 November 2000 noted that the appellant had a history of hypertension and hyperlipidaemia. Dr Scott continued: 
“At this time for reasons which are never identified, the large intermediate artery was not grafted, but an internal mammary artery was applied to the LAD. 
Following surgery there were complications …  
It is my impression that [the appellant] had an unsuccessful first bypass operation, and subsequent to this his life was at risk pending re-operation. He did not appear to suffer any permanent myocardial damage as a result of this. Following the second operation he had incomplete revascularization, and as a result of this had ongoing symptoms of exertional angina, although did not have widespread ischaemia (as demonstrated by the stress ECHO) …  
Currently there appears to be evidence of progression of native disease or graft degeneration, causing worsening symptoms of angina. 10 years after surgery it is not possible to be certain if a 3rd graft would have altered his current status, although it may have given a longer term relief of his symptoms. ”
In around June 2000, the appellant was assessed for an independence allowance. He was referred for that purpose to Dr Thornton who in turn got advice from Dr Scott and I come back to that advice. 
When the matter was considered on 23 January 2001 by the respondent's medical adviser, Dr Kanji, he summarised Dr Scott's report of 23 November 2001 as follows: 
“Unsuccessful 1st operation but did not suffer permanent myocardial damage. 
Following the second operation he had incomplete revascularisation, and as a result of this had ongoing symptoms of exertional angina. 
Breathlessness is likely multifactorial, smoking related lung disease, cardiac ischaemia and hypertensive heart disease. 
Currently there appears to evidence of progression of native disease or graft degeneration, causing worsening symptoms of angina. ”
Based on these factors, Dr Kanji said it appears that, 
“ … his current situation is the result of his primary disease requiring his 1st surgery, that is hypertension, hyperlipidaemia and unstable angina …  
the complication of 
left pneumothorax and infection requiring decortication of the left lung, and 
paravalvular leak requiring repair 
are both no longer causing impairment ”
The question was then put to Dr Scott on the incorrect, “substantially”, basis. Dr Scott responded on 31 January 2001 as follows: 
“I agree with Dr Kanji's interpretation. [The appellant's] current state is to natural progression of pre-existing disease before the first surgery. The only difference as stated previously is that should he require re-do surgery, having had previous complications, this will add to the risk of the surgery. ”
The appellant then sought advice from Dr Lewis. He reported on 13 April 2002 stating: 
“Although some of his heart and symptoms may well be put down to underlying atherosclerosis disease, I do not believe these can be separated from the consequences of his previous procedures. So the current subendocardial ischaemia is related to left ventricular hypertrophy which may well have been aggravated by the prolonged aortic regurgitation caused by the leaking prosthetic valve following his first operation. The fact that he had no assisted in stopping smoking I believe however is a major factor which has led to the ongoing development of atherosclerosis in his legs, and now abdominal aortic aneurysm. 
Finally I do not think it is possible to separate natural underlying disease, from the consequences of his other experiences as detailed above. ”
Dr Lewis' evidence before the review hearing included the following passage: 
“I can't see why he still has angina, if he's got normal coronary arteries, unless his ventrical had become significantly bigger, maybe fibros and maybe just not functioning as well as it should be. And he did have eight months of a leaking valve with very poor circulation. So it is certainly possible. I can't see how you can say ‘no’. I can't definitely say ‘yes’ but I don't think anybody can. But I don't see how anybody could say ‘no’. ”
It was in this context that Dr Scott, in response to Dr Lewis' report said on 31 July 2002: 
“I do not feel the paravalvar leak is likely to have any current relevance. It was not present for a substantial period of time and a long time ago. 
Dr Lewis states this may be a cause of current symptoms … This I do not believe is likely. I feel he most likely has advance disease and may likely have occulded grafts and worsening native disease. The angiogram was a long time ago. ”
It is clear on considering this evidence as a whole that it was well open to the Judge to conclude as he did. 
(iii)Approach to causation 
I do not see any question of law raised by the Judge's approach to this aspect. It is the case that Atkinson dealt with the 1992 Act but that case stands for the propositions that under the 1992 Act there must be a causal relationship between accident and trauma, and the burden on an applicant to show that is on the balance of probabilities. Having referred to Atkinson, all the Judge is saying is that the appellant in this case has not shown that the condition which he presented at the time the respondent made its decision was caused by the medical misadventure for which he was granted cover. If that does raise a question of law, it is not one capable of bona fide and serious argument. 
For these reasons, I do not consider the matters raised by the appellant are such that leave to appeal should be granted. Leave to appeal is accordingly declined. 
The respondent did not seek costs if successful. Costs accordingly lie where they fall. 

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