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Booth V Acc (144/2004) Physical or mental injury, causation

#1 User is offline   ernie 

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Posted 02 October 2004 - 12:04 PM

BOOTH v ACCIDENT COMPENSATION CORPORATION

District Court, Wellington (144/2004)
Judge J D Hole


APPEARANCES
Ms F Taylor, for Appellant
Mr D Tuiqerqere, for First Respondent
Mr S Menzies, for Second Respondent

RESERVED JUDGMENT OF JUDGE J D HOLE

Introduction
  • In August 2002 the appellant lodged a claim for work-related hearing loss. He was then employed by Canpac. On 27 November 2002 the insurer advised the appellant that he had cover for 0.2 percent noise-induced hearing loss and for tinnitus. He was told that his additional claims for cover for hyperacusis and phonophobia were the subject of further investigation. On 17 March 2003 cover for hyperacusis and phonophobia was declined. On 16 September 2003 the Reviewer decided that hyperacusis and phonophobia did not constitute a personal injury and, accordingly, the appellant’s application for review was declined.

    Statutory Criteria

  • Section 20(2)(e) allows cover for personal injury caused by a work-related gradual process, disease, or infection suffered by the person.

  • Section 26(1) states:

    “Personal injury means-

    … (b)physical injuries suffered by a person, including, for example, a strain or sprain; or
    ( c) mental injury suffered by a person because of physical injuries suffered by the person; …”

  • Section 27 states:
    “Mental injury means a clinically significant behavioural, cognitive, or psychological dysfunction”.

  • Section 30 specifically deals with personal injury caused by a work-related gradual process and, in the context of this case, means a personal injury caused by a gradual process caused in the circumstances where the person is employed in an environment which causes or contributes to the cause of the personal injury.

    The Principal Issue

  • The Reviewer declined the review application by holding “that the condition of hyperacusis and phonophobia is not a mental injury arising from the physical injury of the occupationally noise-induced hearing loss for which Mr Booth has cover”. Thus, the Reviewer and the respondents all consider that the claim in respect of hyperacusis and phonophobia can only be entertained if it comes within the provisions of s 26(1)( c) of the Act. It follows, therefore, that they contend that hyperacusis and phonophobia are mental injuries as defined in s 27 of the Act.

  • The appellant concedes that phonophobia is a mental injury. However, he submits that hyperacusis is not: it constitutes a physical injury in the sense contemplated by s 26(1)(b). For completeness, the appellant submits that phonophobia is a mental injury which was suffered by the appellant because of the physical injury of hyperacusis.

  • Therefore, the first issue to be determined is if hyperacusis is a mental injury as defined by s 27.

    Is Hyperacusis a Mental Injury?

  • In their submissions, the respondents seem to have assumed that hyperacusis is a mental injury. In his review, the Reviewer recorded that Dorlands Medical Dictionary (27th Edition) defined hyperacusis as “an exceptionally acute sense of hearing, the hearing threshold being unusually low. The term has been used to denote a painful sensitiveness to sounds, but there is no necessary relationship between the threshold of hearing and that of discomfort”. He recorded that phonophobia was defined as “irrational fear of sounds or of speaking aloud”.

  • The medical reports indicate that the appellant’s hyperacusis can be described as an acute sensitivity to sound.

  • In order to determine what hyperacusis is, the starting is point is definition. Further assistance, however, can be gleaned from the report of Mr Searchfield, an audiologist, dated 8 May 2003. He pointed out that the appellant had reported severe sensitivity and reaction to sound and secondary tinnitus. He recorded that an evaluation of the appellant’s sensitivity had been undertaken and that the problem was worse in the left ear, with discomfort being experienced to most sounds. He then went on to note that the sensitivity affected the appellant’s mood, and that the appellant had reported being more aggressive towards people. Thus, he noted that tests disclosed that the appellant undoubtedly experienced acute sensitivity to noise and he described this as hyperacusis “which can be a collapsed tolerance of loudness”. He then went on: “Associated with the hyperacusis is an element of phonophobia (fear of sound). This manifests itself as a reluctance to enter environments, e.g. workplace, for fear of discomfort. Both hyperacusis and phonophobia can lead to agitation and a desire to remove oneself from “noxious” sound as a form of survival reflex”.

  • Significantly, in my view, Mr Searchfield then referred to the tinnitus, which he noted was a secondary problem but could be managed within the suggested protocol for hyperacusis. He stated: “The hyperacusis and tinnitus are related to damage to the auditory system which may be a consequence of the high levels of sound in the workplace”.

  • In his report dated 28 March 2003, Mr Malcolm Giles, the otolaryngologist and otoneurologist, linked the hyperacusis and tinnitus together and noted that anxiety could be a potent aggravating factor in respect of both conditions.

  • Tinnitus has been described as a “ringing noise in the ears”. An acute sensitivity to sound would seem to be a similar physical condition. I note that the insurer was prepared to accept cover in respect of the tinnitus. If tinnitus and hyperacusis are similar physical conditions, then logically one would have expected the insurer to have accepted cover for both. The insurer has recognised that tinnitus does not come within the definition of mental injury, as set out in s 27. It is difficult, in these circumstances, to understand why hyperacusis should come within that definition. Indeed, all the medical evidence seems to indicate that an acute sensitivity to sound does not constitute a “clinically significant behavioural, cognitive, or psychological dysfunction”.( s.27)

  • Further guidance on this question is available from Wild J’s endorsement of the comments of Judge Beattie in Teen v ACC (HC, Wellington, 11 November 2003, CIV 2003 485 1478) at paragraph 35:

    “It is clear from that definition that physical injury is clearly distinguished as a separate category of injury from mental injury. Physical in this context I find to be in accordance with the dictionary meaning ‘of or relating to the body as distinguished from the mind or spirit’. Using the definition of physical injury in line with the natural and normal meaning it must therefore involve physical damage or hurt, that is bodily harm or damage.”

    At paragraph 36 Wild J noted that Judge Beattie had amplified this definition when he stated in Williams (80/01):

    “In this context “injury” means damage or hurt and “physical” means of or relating to the body, perceptible to the senses, apparent”

  • I think that the respondents reached their conclusion because of the way Dr Collier, the psychiatrist, treated the conditions of hyperacusis and phonophobia. In his various reports, Dr Collier at times seemed to treat the two conditions as if they were one. Furthermore, Dr Collier’s reports are primarily concerned with the cause of hyperacusis and phonophobia which he suggests is psychological in nature. He thinks hyperacusis and phonophobia are symptoms of a chronic generalised anxiety condition, which is a mental condition. Dr Collier, almost inadvertently, I think, has reached a definition of hyperacusis by determining what he thinks is its cause. The dictionary definition and the audiologist describe a physical condition. It follows that the cause of the condition is irrelevant to its description. Finally, in this regard, I think that an audiologist, whose occupation is involved with hearing difficulties, is in a better position to define the condition than a psychiatrist. The latter occupation involves the study and treatment of mental illness and sometimes, as here, encroaches into the realm of the consideration of behavioural conditions – normally the role of a psychologist. (For a more sophisticated indication of the respective occupations, see The New Shorter Oxford English Dictionary whose definitions are sufficient for me to reach this conclusion although would be regarded as hopelessly inadequate, I suspect, if referred to the respective specialists!).

  • I conclude, therefore, that hyperacusis is not a mental injury as defined in s 27 of the Act.

    What was the Cause of the Hyperacusis?

  • Except for Mr Gil Newburn, the neuropsychiatrist, all the experts seem to agree that the cause of the appellant’s hyperacusis is probably the fact that he has been exposed to excessive noise and that he has a predisposition to stress vulnerability. For example, Dr Collier reaches this conclusion in his report dated 30 April 2004. Mr Searchfield concluded that the hyperacusis was, at least in part, related to workplace noise exposure. Mr Giles noted in his report of 28 March 2003:

    “By the time the patient presents to a specialist such as myself there is usually a prolonged history and it is impossible to quantify what proportion of the patient’s disability is due to the underlying damage to the hearing and the tinnitus and what proportion may be due to anxiety”.

    Dr Collier, in his report of 30 April 2004, was not so coy when he attributed 50 percent of the problem to prior noise exposure and 50 percent to psychological factors.

  • Whilst Dr Collier has mentioned that the appellant has been exposed to excessive noise which is unrelated to the workplace, nevertheless all the reports indicate that the conditions of tinnitus and hyperacusis are similar in nature and it is reasonable to conclude that their cause is a common one. The Corporation has already accepted cover in respect of the tinnitus and, in these circumstances, there seems no reason for it not to accept cover in respect of the hyperacusis as well. As in the case of tinnitus, the hyperacusis seems to come within the criteria set out in s 30 of the Act.

    What was the Cause of the Phonophobia?

  • If the appellant is to have cover in respect of the phonophobia, his condition must come within the provisions of s 26(1)( c). Phonophobia must be the result of some physical injury. The respondents contend that, as the hearing loss is so small, it is unlikely to have caused the phonophobia. I think this is correct. Dr Collier is entitled to refer to the significant psychological history of the appellant (and I accept that he has investigated this much more than Mr Newburn). It is reasonable to conclude that the psychological factors referred to by Dr Collier undoubtedly play a significant role in the cause of the phonophobia. However, all the experts seem to acknowledge that the tinnitus and acute sensitivity to sound (hyperacusis) may also have played a role. In these circumstances, as in the case of the hyperacusis, the causative factors include workplace noise and psychological factors. However, it seems clear that the phonophobia’s cause is also related to the hyperacusis and the tinnitus. These latter injuries come within the definition of physical injuries as contemplated by s 26(1)© of the Act. Thus one of the causative factors for the phonophobia condition is a physical injury or injuries (namely tinnitus and hyperacusis) and, accordingly, the appellant is entitled to cover in respect of that condition as well.

    Conclusion

  • The evidence establishes on the balance of probabilities:
    (a)hyperacusis is not a mental injury;
    (b)the hyperacusis suffered by the appellant has been caused by both his psychological condition and workplace noise environment;
    ©one of the causes of his phonophobia is his hyperacusis and tinnitus condition.

  • In these circumstances, he is entitled to cover for both the hyperacusis and phonophobia.

  • It follows that the review decision is quashed and that cover should be afforded to the appellant in respect of both the hyperacusis and phonophobia conditions.

    Costs

  • As the appellant has succeeded in this appeal, he is entitled to costs, which I fix in the sum of $1,200, plus appropriate disbursements (if any) which are to be fixed by the Registrar.

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#2 User is offline   hukildaspida 

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Posted 11 November 2011 - 07:40 PM

Refresh.

For Darrell

You may want to do a search on the http://www.nzlii.org/databases.html for more cases for what you are looking for.

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#3 User is offline   shulgin 

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Posted 12 November 2011 - 09:27 PM

$1200....

What were the risks in terms of costs to go to appeal?

I'll bet 10 times that...
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