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Paul Dennis http://www.nzlii.org/nz/cases/NZACC/2016/301.html

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Posted 12 December 2016 - 10:24 AM

Dennis v Accident Compensation Corporation [2016] NZACC 301 (17 November 2016)

Last Updated: 8 December 2016

IN THE DISTRICT COURT
AT NELSON

[2016] NZACC 301 ACR 191/15

UNDER THE ACCIDENT COMPENSATION ACT 2001

IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT

BETWEEN PAUL DENNIS

Appellant

AND ACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 18 October 2016

Appearances: I Duncan, advocate for Mr Dennis

T Smith for the respondent

Judgment: 17 November 2016
____________________________________________________________________


RESERVED JUDGMENT OF JUDGE J H WALKER

____________________________________________________________________

[1] This is an appeal by Paul Dennis (“Mr Dennis”) in respect to a decision made by the respondent, the Accident Compensation Corporation (“the Corporation”) on 10 December 2014 declining funding for surgery for right rotator cuff repair. The appeal is pursuant to s 149 of the Accident Compensation Act 2001 (“the Act”).
Background and Medical Reports

[2] The appeal relates to a decision declining funding to Mr Dennis in respect to right shoulder surgery.
[3] The injury claim on which the application for surgery is based relates to the accident which occurred to Mr Dennis on 12 November 2013.
[4] The appellant was seen at the Stoke Medical Centre on 29 November 2013 and an injury claim was lodged that day. The description of the accident was “fell onto right side off roof at work, hurt right shoulder, elbow”.
[5] The diagnosis was:
1. S50 sprain shoulder/upper arm. Right
2. S51 sprain elbow/forearm. Right.
[6] The application for cover was accepted by the Corporation by letter to Mr Dennis dated 2 December 2013.
[7] He received further treatment from the Stoke Medical Centre and an x-ray/ultrasound was obtained on 6 January 2014.
[8] The radiologist, Dr Stephen Busby’s conclusion states:
Impression.
1. Heterogeneous supraspinatus tendon without circumscribed tear.
2. Subacromial – subdeltoid bursitis and impingement.
3. Anteroinferior glenoid osseous irregularity? Bankart lesion.
[9] Subsequently Mr Dennis was referred to Dr Perry Turner, Orthopaedic Surgeon.
Prior to this referral an MRI scan was obtained on 25 September 2014. The impressions provided by Radiologist, Dr Chris Davidson state:

Impression:

Evidence of supraspinatus tendinopathy mainly involving the bursal surface fibres. Fraying of the bursal surface is possible.
Probable partial thickness intrasubstance tear subscapularis enthesis.
Severe acromioclavicular joint arthropathy with associated bone marrow oedema.
Evidence of subacromial/subdeltoid bursitis. Laterally downsloping acromion and indentation of the supraspinatus musculotendinous junction. Impingement is not excluded.
Focal glenohumeral joint arthropathy involving the posterior and posterionferior glenoid. Suspected para labral cysts.
[10] Dr Turner reported back to the Stoke Medical Centre, having seen Mr Dennis by letter dated 10 November 2014. He stated:
Diagnosis: Right shoulder rotator cuff tear with biceps tenodesis, subacromial-bursitis and AC joint inflammation.
[11] With respect to his history Dr Turner stated:
On examination Paul has obvious signs of rotator cuff tearing and AC joint inflammation with subacromial bursitis. He has a lot of swelling and tenderness over his AC joint. He has a very painful arc between 30 and 130 degrees. At present he just has the last 20 degrees of abduction missing in his right shoulder, compared to the left, with an almost full range of motion. He has grade 3 power of supraspinatus but normal subscapularis, infraspinatus and teres minor. His long head of biceps is irritable with positive O’Brien’s test. He is tender in his bicipital groove. The shoulder is not unstable. His periscapular muscles, such as deltoid, trapezius, lat dorsi, pec major, biceps, triceps have good muscle bulk and contour.
[12] Under Investigation he states:
Paul has had an up to date MRI scan 25.09.14 which shows evidence of bursal surface tearing of his supraspinatus. Partial thickness tearing of his subscapularis. An enlarged inflamed AC joint with bone marrow oedema. Subacromial bursitis. Also fluid around his biceps tendon.
[13] With respect to Management Dr Turner states:
Today we will apply for Paul to have right shoulder arthroscopy proceeding to mini open greater than two tendon rotator cuff repair which will involve a biceps tenodesis, repair of his supraspinatus and subscapularis and a mini open excision of his distal end of clavicle.
[14] Dr Turner subsequently lodged the Assessment Report and Treatment Plan (ARTP) the following day, 11 November 2014.
[15] In his report he describes the history of Mr Dennis’ present condition:
Paul is 52 and is the maintenance coordinator for McDonalds here in Nelson involving three stores, central town, Tahuna and Motueka. Last year on the 12th of November, he was up on the roof doing maintenance, when he slipped and fell landing heavily on his right shoulder. He had sudden severe pain within his shoulder. Since that time he has had pain in his right shoulder that is centred around his subacromial area, AC joint and radiates down over his deltoid insertion and biceps. He has pain with overhead activities.
[16] In respect to the causal medical link between the proposed treatment and covered injury Dr Turner states:
Due to the fall and impact on his shoulder, Paul has sustained a right shoulder rotator cuff tear with biceps tenodesis, subacromial bursitis and AC joint inflammation. As a result of the accident this tendon is under tension and once torn does not tend to heal back onto the bone. With a damaged supraspinatus tendon, the likelihood is that he will have weakness with overhead activities and may have ongoing pain. The best treatment he has to get his shoulder back to full strength is operative repair.
[17] In respect to relevant pre-existing factors Dr Turner records nil.
[18] In respect to diagnostic tests and imaging he states:
Paul has had an up to date MRI scan 25.09.14 which shows evidence of bursal surface tearing of his supraspinatus. Partial thickness tearing of his subscapularis. An enlarged inflamed AC joint with bone marrow oedema. Subacromial bursitis. Also fluid around his biceps tendon.
[19] With respect to specific diagnosis he states:
Posttraumatic right shoulder rotator cuff tear with AC joint inflammation. Ongoing subacromial bursitis and severe pain.
[20] The procedure sought as set out in the report is:
Shoulder Arthroscopic Repair 2 Rotator Cuff Repair two or more tendons (one of which may include tenodesis of the Biceps tendon)
[21] An elective surgery information summary and clinical report was prepared by the Corporation. This included the GP’s notes from the Stoke Medical Centre and identified two earlier claims by Mr Dennis, one dated 24 July 2012 which stated “McDonalds Nelson cleaning top of Playland ladder collapsed”. The injury description is listed as:
Secondary – SE 44 – Contusion, lower limb, multiple sites – Right, Secondary SE300 – Contusion shoulder area – Right, Secondary – SE311 – Contusion, elbow area - Right.
[22] The second accepted injury is dated 12 November 2013. This indicates under injury description:
Secondary – S50 – Sprain of shoulder and upper arm – Right, Secondary S51. Sprain of elbow and forearm – Right.
[23] A treatment summary included an x-ray of 29 November 2013, elbow MRI 25 September 2014 (ARTP), x-ray and ultrasound 6 January 2014 (ARTP).
[24] A clinical opinion was undertaken by Dr Mary Obele.
[25] Dr Obele refers to the earlier medical events including on 11 January 2013 when Mr Dennis reported to his GP that he was “trying to free saw stuck in tree and fell back hitting back/chest right side on log on ground”.
The GP recorded he had multiple rib fractures on the right side. The right shoulder was not mentioned in the notes.

[26] On 4 September 2013 he was seen by his GP and reported “McDonalds Nelson – cleaning top of Playland, ladder collapsed on 24/07/2012, ten months beforehand”. The GP recorded that Mr Dennis fell off the ladder and was pinned between the rung and the wall hanging for some time, with leg bruising.
[27] On 29 November 2013 Mr Dennis was seen at the Emergency Department and reported a slip off a catwalk two weeks earlier with ongoing right arm and thoracic pain. The right shoulder was noted to fully flex and extend with weakness of supraspinatus on abduction with pain.
This event was also reported to his general practitioner. The GP notes state “likely soft tissue injuries, limited range of motion elbow”.

[28] On 6 January 2014 an ultrasound scan reported supraspinatus tendinopathy and bursal thickening. The x-ray reported bony spurring at the glenoid and acromio-clavicle (AC) joint.
[29] On 25 September 2014 the MRI scan reported severe AC joint arthropathy and type II acromion indenting the supraspinatus with fraying of the supraspinatus tendon, intrastructure tearing of the subscapularis tendon and posterior glenoid arthropathy and paralabral cysts.
[30] On 10 November 2014 the surgeon diagnosed a post-traumatic rotator cuff tear, AC joint inflammation, bursitis and severe pain despite conservative treatment.
[31] It was Dr Obele’s opinion that although the injuries sound significant the clinical findings and imaging do not present clinically convincing evidence of significant acute right shoulder injury. In discussion Dr Obele states:
The clinical information indicates a chronic impingement process with tendon degeneration and AC joint arthropathy.
Impingement occurs when the soft tissues (supraspinatus, bursa), are compressed against the bony arch with normal shoulder movements. A degree of impingement is normal; it can become pathological and remain symptom free for years. Tendon degeneration or “tendinopathy” occurs with chronic impingement.
[32] She continues:
Tendinopathy occurs when the collagen in tendons is gradually replaced by mucoid ground substance and the tendon loses strength. Tendons slowly shear or tear in the line of the tendon fibres. This is called “intrasubstance tearing”. The absence of muscle fatty atrophy does not mean the tearing is acute, and in this case, the supraspinatus and the subscapularis tearing is most likely to be chronic.
[33] She also states:
AC joint arthropathy is very common in this demographic without a history of trauma, but may occur after a clinically diagnosable fracture, dislocation or subluxation of the ACJ. The mechanism of the described incident is not consistent with that sort of injury, and there is no evidence of a significant acute AC joint injury on the recorded examination findings or the imaging.
[34] She also refers to the specialist radiologist referring to the AC joint bony changes being indented on the supraspinatus which means they rub the supraspinatus each time the shoulder is elevated or externally rotated. The type II acromion may also be a source of external impingement.
She states:

This is likely to be a significant contributor to the bursal-sided fraying of the spinatus tendon and the bursal thickening. The bursal thickening is a chronic fibroc process much like forming calluses on the hands and feet. In summary, the surgery is designed to manage this client’s right shoulder chronic impingement and chronic bony changes, which are likely to have developed over some time and are unlikely to be causally related to one-off traumatic events.
[35] It is her view that a causal link between the reported injuries and the condition being treated is unlikely.
[36] The Corporation issued a decision to Mr Dennis on 10 December 2014. It states:
We’ve looked at all available information from your treatment providers and have enclosed a summary of this. This information shows that surgery is required to treat multi-tendon gradual-onset changes, acromial bony changes and AC joint arthropathy. We’ve determined that this condition wasn’t caused by your accident on 12/11/2013, which means that we’re unable to cover this condition and we’re unable to approve your specialist’s request to pay for your surgery.
[37] The appellant applied for review.
The Review

[38] The review occurred on 25 March 2015 but was adjourned so that Mr Dennis could obtain a further report from Dr Turner.
[39] Accordingly there is a further report from Dr Turner dated 17 April 2015 and the review concluded on 22 May 2015. The report from Dr Turner answered questions put to him by the advocate as follows:
1. Do you agree with the finding set out in ACC’s clinical advisor comment (Dr Obele)? If you disagree please set out the reasons why you disagree and any supporting evidence.
Disagree. The three injuries described, in my opinion, caused Paul’s shoulder pathology. He had no problems before his injury 24.07.12. He fell 18 ft onto his shoulder. Another relatively severe injury 06.01.13 where he also fractured ribs. Another severe injury 12.11.13 falling from a roof. His lack of investigations prior to November 2013 (due to a stoic attitude, fortitude and work ethic) should not lead Dr Obele to a lack of common sense on this injury history.
2. Do you believe that the injury for which surgery is required is likely to be wholly or substantially caused by the covered accident events (i.e. either the event of November 2013, or some combination of the other ACC covered events of July 2012 and January 2013)? please set out your reasoning and any supporting evidence.

Wholly covered by all of the accident events. The MRI scan 25.09.14 shows acute injuries and an inflamed shoulder. No chronic changes.
3. To the extent that any degeneration has contributed to the need for surgery, is such degeneration likely to be posttraumatic degeneration (i.e. from the covered accidents on 12.11.13 or some combination of the other ACC covered events on 24.7.2012 and 06.01.13) rather than age related wear and tear or some non traumatic degeneration?
Any degeneration seen is wholly from the injuries 24.7.212, 06.01.13 and 12.11.13.

4. Do you want to make any comment in the fact that between these covered injuries Paul has continued working in a physical occupation which has required a substantial amount of stress on his shoulder.

Paul has a stoic attitude and solid work ethic. He has continued to work through his injuries. He should be applauded for this - rather than punished.

[40] The Reviewer released her decision on 15 June 2015.
She dismissed the application and stated, in respect to the outcome:

The evidence as a whole shows that the pathology of Mr Dennis’ right shoulder for which he required surgery was multi-tendon gradual onset changes, acromial bony changes and AC joint arthropathy. These conditions were not caused by any of the covered accidents. Instead, the covered accidents are likely to have symptomatically aggravated chronic ongoing right shoulder pathology.
[41] In the review decision the Reviewer states:
Mr Dennis described his work as a maintenance manager ... and said this involved a lot of hands-on work and was very physical.
[42] She refers in the review decision to his description in respect to the injuries. She states that he describes the fall he suffered on 24 July 2012 when the play ladder he repaired collapsed and that he injured his shoulder when he attempted to stop his fall and he also injured his leg and back at the same time.
[43] The appellant also referred to the accident of July 2012 where he was unable to use an axe to split firewood and said he had ongoing sleep disturbance because of the pain in his shoulder since the accident.
[44] He also refers to injuring his shoulder again in January 2013 when he also fractured his ribs. He said that the focus had been on his rib injury at the time.
[45] She refers to the fact that Mr Dennis then said that between 6 January 2013 and 12 November 2013 the shoulder was getting worse and worse and he was taking more medication to manage the pain. She stated:
He said that no investigations were done and he was just told that the injury was hard to heal.

[46] The appellant referred to a subsequent accident which occurred on 1 March 2014. He said he was knocked out when the wall of a house which was being built fell on his head, back and shoulder and stated this aggravated his shoulder.
He confirmed that he had shoulder surgery on 15 January 2015 funded by his medical insurer.

[47] In her analysis and discussion, the Reviewer deals with causation and refers to the decision of ACC v Ambros,[1] stating that if the issue is one of causation then it is to be determined on the basis of the whole of the evidence and not just the expert medical evidence. She states:
To be entitled to ACC funding for these procedures, Mr Dennis must establish, on the balance of probabilities, that the procedures were needed to treat conditions for which he has cover and that the conditions were not wholly or substantially caused by an underlying disease or gradual process.

[48] In respect to the causal link, the Reviewer refers to the fact that when Dr Turner applied for ACC funding he stated that the reason Mr Dennis required surgery was due to the fall and impact of his right shoulder caused by the accident on 12 November 2013 and did not refer to any of Mr Dennis’ other covered claims and, in fact, confirmed there were no relevant pre-existing factors.
[49] She refers to the fact that in the letter provided by Dr Turner dated 17 April 2015 he states that the three injuries which occurred in July 2012, January 2013 and November 2013 had caused Mr Dennis’ shoulder pathology. She states that he gives no reasons for his change of view nor does he explain why he considers the injuries sustained in these accidents were the cause of Mr Dennis’ shoulder pathology other than to note that the accidents were “relatively severe”.
[50] The Reviewer also refers to Dr Obele’s report and confirms that Dr Obele did not see or examine Mr Dennis. She states:
I consider this does not detract from her carefully considered opinion.

[51] She states that the information shows that ACC funded only two GP visits following the initial July 2012 accident and states:
In my view, this fact in itself indicates that this accident did not cause any significant injury to Mr Dennis’ right shoulder which could have caused or contributed to the cause of his rotator cuff tendon tears, AC joint inflammation and ongoing subacromial bursitis.

[52] The Reviewer concluded that the evidence shows that the right shoulder and arm strain injuries sustained by Mr Dennis on 12 November 2013 were not the cause of the multiple pathology in his right shoulder in respect to which he required surgery.
She also stated the evidence did not establish that either of the accidents that he suffered in July 2012 and January 2013 caused a significant acute injury to his shoulder which could have caused or contributed to the pathology of his right shoulder and that the evidence as a whole indicated the pathology in Mr Dennis’ right shoulder, for which he required surgery, was multi tendon gradual onset changes, acromial bony changes and AC joint arthropathy, conditions which are not caused by any of the covered accidents.

Appeal

[53] Mr Duncan, advocate for appellant, lodged an unsigned, undated application for appeal by letter dated 22 June 2015.
[54] The Corporation has filed two CAP reports, the first endorsed by six of the Panel members dated 7 March 2016, and the second after additional information was obtained by the full Panel dated 13 May 2016.
[55] The first report the Panel referred to was regarding the accident sustained on 12 November 2013 as described on the ACC claim form:
Fell onto right side off roof at work, hurt right shoulder, elbow.
[56] This was lodged after consultation with his GP on 29 November 2013 and the history is reported in the medical notes as:
In with sore right shoulder and elbow after falling on a roof at work, slipped on wet wood, fell into v recess of roof 2 weeks + ago.

[57] The medical notes state that the right shoulder examination included limited abduction with pain, external and internal rotation and reduced elbow range of movement was also identified.
[58] The Emergency Department (29/11/2013) documentation reported Mr Dennis had been “working/painting” and not taking any pain relieving medication. It is noted that the thoracic spine x-ray reportedly indicated a mild loss of anterior height at T8 and that both the elbow and thoracic x-rays reportedly identified degenerative changes. The provisional diagnosis was of a possible supraspinatus injury.
[59] There was an x-ray obtained of Mr Dennis’ right shoulder on 6 January 2014 which included the report as follows:
Moderate acromioclavicular arthropathy with small marginal bone spurs.
Ultrasound RIGHT shoulder (06/01/2014) included reporting:
Mild hererogeneity of the supraspinatus tendon without associated fibre discontinuity or volume loss to suggest a tear.
Mild subacromial – subdeltoid bursal thickening is accompanied by painful buckling on arm abduction.
[60] There is a further incident report on 1 March 2014 described in the ACC45 form as “lifting house frames, fell over, hit on back and head”. It is stated that the Emergency Department notes on the day of injury noted Mr Dennis was helping put up a framing wall when the wall collapsed directly on him striking him in the upper thoracic region. His symptoms included:
transient tingling both arms & legs, lasted 5 minutes and then resolved. Tried to continue working, worsening neck/back pain, headache, abdo pain.
[61] There is a note from the GP followup of 7 April 2014 which indicated that since the recent accident Mr Dennis had a “sore neck and R shoulder now sore again after having had u/s guided injection”. There was a note that “CT scan of head, neck, spine and abdo no # identified and no soft tissue injuries seen”.
[62] A further GP followup of 8 September 2014 related to the constant right shoulder aching, interfering with sleep. Limitation of movement was also noted.
[63] The report from the MRI right shoulder of 25 September 2014 included reporting:
Acromion/acromioclavicular joint: Moderate remodelling and osteophyte formation in keeping with arthropathy involving the acromioclavicular joint. There is marked associated bone marrow oedema on both sides of the joint. The acromion is type II and laterally downsloping.
There is indentation of the distal supraspinatus muscle belly and musculotendinous junction from bony hypertrophy of the distal clavicle.
Bursa: Moderate T2 hight signal thickening of the subacromial/subdeltoid bursa.
Supraspinatus: Increased T2 signal involving the bursal surface fibres of the supraspinatus tendon. A defined tear is not identified; however bursal surface fraying of the tendon is possible.
Infraspinatus: Mild signal change involves the infraspinatus musculotendinous junction, without a defined tear, and there is minimal focal bone marrow oedema at the infraspinatus enthesis. Suggestive of an intrasubstance partial-thickness tear.
Glenohumeral joint: Focal glenohumeral joint arthropathy involving the posterior and posteroinferior glenoid. Suspected para labral cysts.

[64] The Panel report of 7 March 2016 also provides evidence given by Mr Dennis from the transcript of the review hearing in respect to the incident of 24 July 2012 where he was on a ladder. He states:
And I was up on the top of it and – which is about 18 foot in the air and, moving to another part of it, the ladder collapsed. And I grabbed, I think it was, the sun face or whatever to try and catch myself – but couldn’t hold myself and went and flipped on to the top of a metal fence on top of my shoulder. At that time, I rolled on to the ladder that was teetered on top of the fence from falling over and my leg then got caught into-between a rung and the top of the fence...
[65] The Reviewer subsequently clarified with Mr Dennis that the initial injury was felt to have occurred as he grabbed hold of something to try and arrest the fall.
[66] The Panel also referred to Mr Dennis’ description of the incident of 6 January 2013 when he was cutting some logs. He clarified that the initial consultation focused on rib fractures rather than the shoulder. They refer to the transcript relating to his account of the accident of 12 November 2013 where he said:
I was doing some fan maintenance with one of the shift managers there, up on the roof. And the Tahuna McDonald’s roof is kind of a “V”. It’s – there are two slants that form a V and they have wooden catwalks on them and they just – they’re really dangerous I, I mean slimy and that when you’re doing the fan maintenance. And, I mean, I have the proper slip-proof shoes and that and, you know, they’re supposed to help and – but nothing helps up there. I mean, you – so - and – yeah, I was cleaning it and well, I went to go turn around and just did a cartwheel onto my shoulder and pinned my arms behind me as I was rolling over. And it was half on the catwalk and kind of half on the roof.
[67] He also refers to the accident of 1 March 2014 when he was at his home which was just being rebuilt after a fire and that he had his back to a studded wall and it hit him on the head, neck, back and shoulder and knocked him out cold.
[68] The conclusion of the Panel report states:
The current issue relates to the cause of the identified RIGHT shoulder pathology. The proposed surgery intended to address supraspinatus and subscapularis tendon pathology (with the inference of traumatic aetiology of tears in these tendons), subacromial bursitis and acromioclavicular joint pathology (with the inference of post traumatic inflammation of this joint). The proposed procedure was a two tendon rotator cuff repair involving a biceps tenodesis, repair at the supraspinatus and the subscapularis tendons and a mini open excision at the distal end of the clavicle.

[69] The Panel state however that at this stage there does not appear to be any evidence of traumatic pathology. This is elaborated on further when the Panel state:
There does not appear to be rotator cuff tearing identified on the RIGHT shoulder ultrasound (the supraspinatus tendon was reported to be heterogeneous, which appears consistent with tendinopathy, but no clear tear identified. No subscapularis tendon abnormality was identified. There appears to be some impingement – indicated by bursal thickening). No bony injury was identified on X-ray. This imaging was performed on the 6/1/2014 i.e. after the 13/7/2012, 06/10/13 and the 12/11/13 accident events.
The pathology identified on the RIGHT shoulder MRI appears most consistent with gradual process change, including signal change and possible bursal surface fraying of the supraspinatus tendon (a defined tear was not identified) signal change of the infraspinatus musculotendinous junction (without a defined tear) and signal change of the distal subscapularis enthesis with possible intrasubstance partial-thickness tear (this type of tear morphology, intrasubstance tearing with no articular or bursal-sided extension, appears atypical of a traumatic rotator cuff tear) i.e. the MRI findings appear consistent with multi-tendinopathy and no clear traumatic rotator cuff pathology. This imaging was performed on 25/09/2014 i.e. after the 13/07/2012, 06/01/2013, 12/11/2013 and 01/03/2014 accident events.
The acromioclavicular joint changes were well established in the 06/01/2014 x-ray (moderate acromioclavicular joint arthropathy with marginal bone spur formation within two months of the 12/11/2013 accident) and 25/09/14 MRI (severe acromioclavicular joint arthropathy with associated bone marrow oedema). These changes appear consistent with common, age related degenerative change. There does not appear to be evidence of a traumatic injury to the acromioclavicular joint of sufficient extent e.g. fracture or dislocation, to attribute this degeneration as a post traumatic change.

[70] The Panel also refer to fact that the 17 April 2014 report provided by Dr Turner is inconsistent with other information on the file.
[71] It is noted that the ARTP funding request was submitted in respect to the 20 November 2013 event and indicated there were “Nil” relevant pre-existing factors. This is in contrast with his 17 April 2015 report where he indicates that the shoulder pathology was caused by the three injuries described, indicating that the surgery addressed pathology which is “Wholly covered by all of the accident events”.
[72] They note in addition that Dr Turner’s 17 April 2015 report also appears to suggest that the MRI findings are consistent with “acute injuries and an inflamed shoulder. No chronic changes”.
[73] In contrast, the next statement by Dr Turner suggests that “Any degeneration seen is wholly from the injuries of 24.07.2012, 06.01.2013 and 12.11.2013”. These two statements appear to be somewhat contradictory.
[74] The Panel’s view is that the 25 September 2014 MRI findings do not appear to include any pathology that is likely to have been caused by single episode trauma. The findings appear most consistent with longstanding acromioclavicular and glenohumeral joint arthropathy, subacromial impingement and multi tendon gradual process changes without significant tearing.
[75] They also point out that Dr Turner describes the 24 July 2012 accidents as “He fell 18 ft onto his shoulder” which is not consistent with the description provided by Mr Dennis at the review.
It is the view of the Panel that the history of accidents as described at the review, including the mechanisms of accident, involved uncontrolled/expected force with the potential for significant right shoulder injury. They state:

However, the clinical and imaging information does not appear to support that a significant RIGHT shoulder e.g. rotator cuff injury or acromioclavicular joint injury has been sustained in any of the accident events.
[76] It was the view of the Panel that a causal link between the current right shoulder pathology and the covered accident had not been established. They sought additional information in respect to the two earlier accident claims including the billing records where the billing records indicated two GP consultations were funded in respect to the 24 July 2012 claim and in respect to the second claim there was one GP consultation.
[77] The Panel’s second report of 10 May 2016 was made subsequent to the history of the early claims becoming available. With respect to the accident of 24 July 2012 the GP notes of 26 July 2012 state:
back sore after falling from top of playground hung up on fence by legs, for 5 minutes then able to get himself down. Still sore especially behind right knee but also right shoulder. Limited movement right shoulder rotation both internal and external is reduced.
[78] The medical note of 4 September 2013 focused on the knee injuries noting:
last year fell off a ladder and was pinned between the rung and wall and hanging for some time a lot of contusion around leg very sore initially but better over time however still sore outer knee esp after using it a lot or if been squatting or sitting on floor.
[79] The GP note of 11 January 2013 in respect to the 6 January 2013 accident notes:
CHEST INJURY – likely rib fractures. Was cutting wood and saw got jammed, was trying to pull out and when released fell back landing on another round of wood on right side chest/back.
Happened Sun 1000.
Winded init and since then sore to touch, deep breathing/cough etc and sleep on that side but has been continuing work though seems to be getting more sore, esp when lifting heavy things/twisting.
Breathing okay at rest, no fever etc.
[80] The Panel state the assessment is suggestive of multiple closed rib fractures, with bruising on the lateral chest wall (right and tenderness over ribs 7-10).
[81] In conclusion in respect to the additional evidence the Panel note:
The contemporaneous GP notes (26/07/2012) relating to the 24/07/2012 accident provide a comparable description of the July 2012 mechanism of injury to that which was provided at Review ...we note that these descriptions are in contrast to the 17/04/2015 report by the treating surgeon, Mr Turner, who suggested that “He fell 18 ft onto his shoulder.”

[82] The Panel also state that the contemporaneous notes suggest that the main post accident symptoms related to the right knee but there were also symptoms affecting the right shoulder although follow up notes continued to relate to the knee symptoms without further mention of the shoulder at that stage.
[83] The Panel state:
There does not appear to be clear support for significant ongoing RIGHT shoulder symptoms or functional impairment (as might reasonably be expected following a traumatic rotator cuff tear). This clinical presentation does not appear typical of a significant RIGHT shoulder injury or explain the subsequently identified acromioclavicular joint degeneration or rotator cuff pathology.
[84] The Panel also refers to the contemporaneous GP notes relating to the 6 January 2013 accident and state that this also provides a comparable description of the January 2013 mechanism of injury provided by Mr Dennis at review.
The Panel notes that the contemporaneous notes suggest the impact was on the right side of the chest and back with resultant right closed rib fractures. It is noted that in Mr Dennis’ review description he states that “the fall was onto my shoulder and back”. It is also noted that in the report of Dr Turner he indicated this was to be “relatively severe injury 06.01.13 where he also fracture ribs”.

[85] The Panel state that there does not appear to be any evidence to support a significant right shoulder injury (such as a rotator cuff tear or acromioclavicular joint fracture/dislocation) sustained in the January 2013 accident.
[86] The Panel’s discussion of the events of 12 November 2013, in respect to the fall on the roof on 1 March 2014 and subsequent wall collapse, involved mechanisms of injury with the potential to cause a right shoulder injury. Their opinion however is that the evidence (including the imaging evidence and clinical presentation), do not appear to support that a significant rotator cuff or acromioclavicular joint injury was sustained in any of the noted accident events (either singularly or cumulatively).
[87] The Panel state there appears to be no clear evidence of traumatic pathology, including no ultrasound imaging evidence of a tear (which, when present, can have traumatic or atraumatic aetiology) after the first three accidents.
[88] The Panel states the January 2014 ultrasound and the 25 September 2014 MRI (after the four accidents) appears most consistent with a gradual process condition – including rotator cuff tendinopathy with possible intrasubstance subscapularis tendon tearing by the time of 25 September 2014 MRI. No defined tears of supraspinatus or infraspinatus tendons were identified. There is also no imaging evidence of single episode injury to the acromioclavicular joint and there does not appear to be any clinical evidence suggestive of an injury to this joint e.g. no localised symptoms, evidence of dislocation or ligament disruption.
The Position of the Appellant

[89] Mr Duncan, advocate for Mr Dennis filed submissions prior to the hearing attaching his review submissions and also addressed the Court orally at the hearing.
[90] It is his position that the Corporation’s rationale for its decline of surgery seems based on a number of assumptions the Corporation have made regarding the accident on 24 July 2012 together with the subsequent accidents on 6 January 2013 and 12 November 2013. The medical rationale in his view does not appear to be based on an objective assessment of the evidence.
[91] Mr Duncan states that the medical rationale in the CAP medical comment signed by Mr Mary Obele on 9 July 2014 is rebutted by the treating orthopaedic surgeon Dr Perry Turner.
[92] Dr Turner referred to the fact that there were no symptoms reported prior to July 2012 but that Mr Dennis reported constant and worsening symptoms since his accident in July 2012 and more particularly after the fall on 12 November 2013.
[93] Mr Duncan refers to Mr Dennis’ concerns about the delays in obtaining medical treatment and the lack of imaging of earlier injuries.
[94] Mr Duncan states at paragraph 15 of his review submissions:
Even if the latest accident (under which surgery has been requested) is not the primary cause of the injury (as ACC has postulated), the Applicant has had 17 months for post-traumatic degeneration to develop (i.e. from July 2012), before the imaging upon which ACC have relied to support the decline. He had 2 further accidents to aggravate the original injury. He continued working. None of this seems to have been taken into account by ACC.
[95] Mr Duncan also states that Dr Turner has supported the analysis of the mechanism and its causal relationship to the injury for which surgery is required. He states that these comments were informed based on Dr Turner’s consultations with Mr Dennis which provide far more direct knowledge of Mr Dennis’ injury and medical history.
[96] It is his submission, based on the evidence of Dr Turner, that the accident suffered by Mr Dennis on 24 July 2012 and the subsequent accidents of 6 January 2013 and 12 November 2013 clearly describe the sort of mechanism that is likely to cause the injury for which cover and entitlements are now required.
[97] It is his submission that because Dr Turner has physically examined and treated Mr Dennis that he has a far better perspective of events. In his oral submissions Mr Duncan submitted that the Corporation has never looked at the matter with an open mind. He emphasised that Mr Dennis has lost his job and there was a lot now riding on this.
[98] He submits that the Corporation failed to objectively consider all the information required and based their decision on:
[a] A mistaken assumption with respect to the mechanism of injury of the accident of 26 July 2012.
[b] A mistaken assumption in respect to the development of symptoms.
[c] Disregarding the lack of significant symptoms prior to 24 July 2012.
[d] Disregarding the ongoing symptoms experienced by Mr Dennis since the accident on 24 July 2012.
[e] Disregarding the impact of the subsequent accidents of 6 January 2013 and 12 November 2013.
[f] Disregarding the likely effect of post traumatic degeneration and subsequent accidents on the original injury.
The Position of the Respondent

[99] Mr Smith, Counsel for the Corporation, has also filed submissions in respect to this appeal and also addressed me orally at the hearing. The position of Counsel is that the central issue relating to the matter is causation and that to succeed on appeal Mr Dennis must prove, on the balance of probabilities, a sufficient causal link between his covered accident or accidents and the pathology in his right shoulder requiring surgery.
He states it is the position of the Corporation that the pathology in Mr Dennis’ right shoulder was not caused by any of the covered accidents.

[100] Mr Smith states that “personal injury” is defined by s 26 of the Act and includes physical injuries suffered by a person such as a strain or a sprain. He notes that physical injuries are those that have:
Some appreciable and not wholly transitory impact on the person but which are not necessarily long lasting or ones that cause serious bodily harm.
[101] He also states in his submissions a physical injury must:
Involve physical damage or hurt that is bodily harm or damage.
[102] He also refers to the definition in the Act under s 25 of the Act of “accident” and states:
Pursuant to s 25(3) the fact that a person has suffered a personal injury is not of itself to be construed as an indication or presumption that it was caused by an accident.
[103] Counsel also refers to the fact that personal injury suffered wholly or substantially by gradual process, disease or infection is not covered under the Act, unless it falls within the circumstances set out in s 20(2)(e) to (h) of the Act. Under s 20(2)(g) a person has cover for a personal injury caused by a gradual process, disease or infection that is a consequence of a covered personal injury.
[104] In respect to causation generally he refers to the decision of the Corporation in Ambros.[2] That decision sets out the general principles of causation in the ACC context and states at paragraph [65]:
The requirement for a plaintiff to prove causation on the balance of probabilities means that the plaintiff must show that the probability of causation is higher than 50 percent. However, Courts do not usually undertake accurate probabilistic calculations when evaluating whether causation has been proved. They proceed on their general impression of the sufficiency of the lay and scientific evidence to meet the required standard of proof ...
[105] Counsel states at paragraph 35 of his submissions the same minimum requirement of “material causation” applies when the statutory language used is “resulting from” or “because of”, or “caused by” or “outcome”. Satisfying the traditional “but for” approach is not enough to prove causation. He also states that it is well established that a temporal connection between pain and accident is not sufficient in itself to prove causation. He refers to the decision of Perry v ACC.[3]
[106] At paragraph 37 of his submissions he deals with the acceleration of degenerative changes/asymptomatic condition. He states:
The aggravation or acceleration of an existing injury process is not within the statutory meaning of personal injury by accident. In McDonald v Accident Rehabilitation and Compensation Insurance Corporation [2002] NZAR 970 (HC) Pankhurst J adopted the reasoning of Judge Beattie in an earlier District Court case in, which Judge Beattie said:
... if medical evidence establishes there are pre-existing degenerative changes which are brought to light or which become symptomatic as a consequence of an event which constitutes an accident, it can only be the injury caused by the accident, and not the injury that is the continuing effects of the pre-existing degenerative condition that can be covered. The fact that it is the event of an accident which renders symptomatic that which previously was asymptomatic does not alter that basic principle. The accident did not cause the degenerative changes, it just caused the effects of the changes to become apparent. ...
[107] Counsel also refers to the decision of Miller J in Cochrane v ACC[4] and Simon France J in Johnston v ACC[5] where His Honour referred to the careful wording of the paragraph in McDonald and said:
[14] The issue is not whether an accident caused the incapacity. The issue is whether the accident caused a physical injury that is presently causing or contributing to the incapacity.
[108] Mr Smith also referred to the decision of Judge Ongley relating to rotator cuff injuries pathology and the decision of Coombridge v ACC:[6]
[9] ... It is well established in the field of accident compensation, that the occurrence of symptoms is not strong evidence of a shoulder injury. There is medical consensus that rotator cuff disease can frequently occur as people grow older, and may be without symptoms until an incident causes pain, which may become chronic.
[10] The difficulty for an accident compensation claimant is that s26 of the Act excludes cover for injury caused wholly or substantially by a gradual process, disease, or ageing. If an incident causes acute symptoms from an underlying condition that is itself caused wholly or substantially by such an underlying situation, there is no cover. If the incident causes a minor injury, the condition requiring surgery or other entitlement may still be excluded. It is only if the accident causes a significant discrete injury that the s26 exclusion can be avoided. Cover is not available for aggravation of an existing condition.
[109] It is the position of the Corporation that Mr Dennis cannot prove that the pathology in his right shoulder was caused by the covered accidents and that there is insufficient evidence pointing to proof of causation on the balance of probabilities and accordingly the Court is unable to draw even a robust inference.
[110] Counsel in his submissions at paragraph 45 refers to the fact that the history of the injuries and the examination is important.
[111] Counsel refers specifically to the GP notes following the accident of 24 July 2012. It is noted there were references both to Mr Dennis’ right knee and right shoulder but the follow up GP notes only refer to the right knee symptoms and accordingly based on these notes there was not deemed to be any significant ongoing right shoulder symptoms or impairment. Counsel submits that the GP notes from the January 2013 accident do not support a significant right shoulder injury being sustained in that accident.
[112] Counsel also refers to the CAP having the benefit of the contemporaneous GP notes and that it does not appear that Dr Turner saw those notes when he described the injury as Mr Dennis falling 18 feet onto his shoulder (which is also inconsistent with the evidence in fact given by Mr Dennis at the review hearing).
[113] Counsel also refers to Dr Turner’s description of the January 2013 accident as being “relatively severe injury” where Mr Dennis also fractured ribs, but that the contemporaneous notes relate only to the significant chest injury and there is nothing to support that a significant right shoulder injury was sustained.
[114] Counsel submits that the surgery was designed to manage Mr Dennis’ chronic impingement and chronic bony changes which Dr Obele opined were more likely to have developed over some time and were unlikely to be causally related to one off traumatic events.
[115] He states in his submissions:
(d) Dr Obele has considered all of the clinical information available and provided a more likely explanation that the conditions requiring surgery were unlikely to be caused by the covered one off events.
(e) The CAP also concluded that the ultrasound and MRI appear most consistent with a gradual process condition and that there was “no clear evidence of traumatic pathology, including no ultrasound imaging evidence of a tear”.
(f) Dr Obele and the CAP considered all of the clinical information available to them whereas it appears Mr Turner has based his opinion on what Mr Dennis has told him. It is submitted that Dr Obele’s opinion is soundly reasoned and is consistent with the CAP’s findings.
[116] Counsel also submits that there is still no explanation from Dr Turner as to change of his opinion between November 2013 and April 2014 as to his initial statement that the surgery was required solely in respect to the November 2015 incident and subsequently stating later that all three accidents caused Mr Dennis’ pathology. He states that Dr Turner has also failed to explain how the covered injuries have caused the pathology in Mr Dennis’ right shoulder requiring surgery and a temporal connection is not sufficient.
[117] It is his position that the reports from Dr Turner only disclose a theoretically possible, rather than probable causal link between the covered accidents and the pathology in Mr Dennis’ right shoulder and that the clinical evidence establishes the covered injury events have more likely symptomatically aggravated pre-existing chronic pain right shoulder pathology.
[118] Counsel states, in respect to the competing medical evidence, that the Corporation does not accept the submission that “the treating specialist is almost always preferred over the ACC specialists” and rather that it comes down to the quality of the evidence in each particular case.
It is acknowledged that Dr Turner as the treating orthopaedic surgeon has first hand clinical knowledge of Mr Dennis however he states that Dr Obele and THE CAP have been able to rely on all the clinical information available.

Where there is no issue with the clinical findings and the question is about the cause, it is submitted the treating surgeon is of no particular “advantage” over practitioners who are providing opinions based on a review of the documents and it is submitted that this is the case here.

Discussion and Analysis

[119] It is accepted that Mr Dennis has experienced considerable frustration in respect to the delay in obtaining treatment for his injuries relating in particular to his shoulder. The medical notes of Mr Dennis go back to April 2012 and are not solely linked with the matters before the Court but do indicate that he has had considerable health difficulties and ongoing pain.
[120] It is noted that even before the first event that has been referred to, on the occasion where he fell off the ladder, he has been on considerable medication and that there is a reference to back pain after undertaking water blasting, slipping on the tile and falling on his lower back earlier in July 2012.
[121] It is accepted also that had there been earlier imaging there may have been an earlier opportunity to address some of his shoulder problems and the medical reports do indicate an increase in medication in respect to pain symptoms.
[122] In respect to the first reported accident of 24 July 2012 there appear to be a number of contusions, but the injury description from Nelson Emergency Medicine on the day of the accident does not appear to emphasise his shoulder in particular and states:
R shoulder – moves freely. Perhaps mildly tender in a/c joint area. Only mildly tender elsewhere.
[123] It is noted that Mr Dennis required two GP visits and the injuries were not followed up further in any way.
[124] The accident of 6 January 2013 related to an event where Mr Dennis was chopping wood and the saw got jammed. When pulling it out he fell back, landing on his right side chest/back on another round of wood.
There is no mention in the medical notes of Dr Kimberly Harlow of 11 January 2013 relating to his shoulder and it is diagnosed as “likely multiple rib fractures closed and no complications evident”.

It is noted that he obtained pain relief and there is a repeat script later in the month also identifying it was for the purpose of pain.

[125] The mechanism of this second event however does not indicate any shoulder pain or injury. Dr Turner, in his report of 17 April 2015, refers to it as “another relatively severe injury 06/01/13 where he also fractured ribs”.
[126] However, Dr Turner it would seem, states that his belief is that these accidents of 24 July 2012 and 12 November 2013 causative of Mr Dennis’ shoulder pathology without any foundation. Nor is there any basis for his remark that any degeneration is wholly related to the injuries including that of 6 January 2013.
[127] With regard to the third accident on 12 November 2013, the ACC claim, following GP consultation with Dr Kae Bennetts on 29 November 2013 states:
In with sore right shoulder and elbow after falling on a roof at work, slipped on wet wood, fell into v recess of roof 2 weeks ago.

[128] The thoracic x-rays report of the Emergency Department documentation of 29 November 2013 referred to in the CAP report of 7 March 2016 relate to a mild loss of anterior height at T8 of the spine and also elbow degeneration, but do not mention any shoulder injury.
[129] Concern with pain throughout these episodes is not centred on his shoulder. Between the injury of January 2013 and November 2013 there are a number of doctor’s visits which report pain being chiefly in respect to other conditions and Mr Dennis does report ongoing knee pain arising from the fall from the ladder as late as September 2013. However, there is no mention of shoulder pain.
[130] When seen by a doctor on 29 November 2013 he refers to:
Pain in right arm, spine, right shoulder, limited abduction with pain, right elbow, tender parathoricic muscles right side.
[131] It was noticed he had another consultation on 18 December 2013 which states:
Slowly recovering after fall although still alot of pain taking brufen daily and panadeine back still sore and awaiting ultrasound of shoulder and xray.

shoulder tender around acrominum.

[132] At the next appointment on 15 January 2014 with Dr Barber the medical notes state:
Mid back very sore worse than shoulder and R elbow very painful.
Landed on this with the fall but prior to this was washing up high to get some bird poop and strained side of arm and could feel it lat elbow.
[133] Accordingly, I accept the opinion of the Panel in that there is no evidence of any traumatic pathology in Mr Dennis’ shoulder arising from these three earlier incidents.
[134] The accident of 12 November 2013 is the basis for the surgery application for which he has a covered injury. This is the accident which Dr Turner initially attributed was entirely responsible for the rotator cuff tear with tenodesis, subacromial bursa and AC joint inflammation.
[135] I accept in this respect that Dr Obele carefully looked at all the aspects of the injury, which as stated, indicated a chronic impingement process with tendon degeneration and AC joint arthropathy.
I find that she provided a much more likely explanation that the conditions that required surgery at this stage were unlikely to be caused by covered one off events.

[136] For some reason Dr Turner attributes Dr Obele’s conclusions to a “lack of common sense as to Mr Dennis’ injury history” and suggests that lack of any investigations in respect to Mr Dennis’ condition prior to November 2013 was due to a stoic attitude of fortitude and work ethic.
[137] On the contrary, the medical reports indicate that Mr Dennis had frequent contact with medical services and that the back pain was only one of a number of concerns that were followed through with. It is accepted that Mr Dennis did have a strong work ethic and commitment but that he was also undergoing a number of difficulties at this time and they, together with the accident, impacted on his ability to work.
[138] In respect specifically to the accident of 12 November 2013 it is noted that at first the attempt was made to deal with the issue of pain by injection of steroid in the shoulder which had limited benefit.
I accept the evidence of Dr Obele and the Panel however that an analysis, based particularly on the imaging being the 6 January 2014 ultrasound and the 26 September 2014 MRI indicate a well established pathology consistent with gradual process change and no evidence of traumatic pathology. Neither on the basis of 4 accidents referred to by Dr Turner, or initially on his position that the accident of 21 November 2013 was solely responsible for the shoulder trauma, establishes causation on the balance of probabilities.

Accordingly, it is accepted that the most consistent probability of his condition is a gradual process condition which includes the rotator cuff tendinopathy and possible subscapularis tendon tearing.

[139] In respect to the position of Mr Dennis I do not find sufficient evidence that points to any or all of the injuries referred to being the cause of the need for the request for surgery.
[140] This is clearly not to say that the surgery was not necessary but I find that the chronic impingement and chronic bony changes, together with the AC joint arthropathy, resulted wholly or substantially from a gradual process rendered symptomatic by the accident or accidents that occurred.
[141] To adopt Simon France J’s words “The issue is whether the accident/accidents caused a physical injury that is presently causing or contributing to the incapacity”.[7]
[142] Accordingly, I do not find that Mr Dennis has established on the balance of probabilities that the cause of his symptoms which require surgery arose from all or any of the accidents for which he had cover.
Application for Suppression

[143] The respondent’s advocate, in his written submissions refers to s 160 of the Act which deals with the Court’s discretion to make orders prohibiting publication. Section 160(1) of the Act states:
160 Court may make order prohibiting publication
(1) The court may make—
(a) an order forbidding publication of any report or account of the whole or part of—
(i) the evidence adduced; or
(ii) the submissions made:
(B) an order forbidding the publication of the name, address, or occupation, or particulars likely to lead to the identification, of—
(i) a party to the appeal; or
(ii) a person who is entitled to appear and be heard; or
(iii) a witness.
[144] His advocate has made general submissions as to the fact that an applicant is being forced into a public process of hearing to confirm cover and entitlements under a statute managed by the respondent and that it is inappropriate for the personal medical information identifying Mr Dennis to be published.
[145] His advocate also raises privacy concerns and concerns of identification via the internet process.
[146] It is accepted that the provision for name suppression in the criminal jurisdiction is not referable in this jurisdiction. There are occasions however, where suppression is granted. This is generally in cases which have a degree of sensitivity in the subject matter concerned, for family reasons or ongoing health reasons.
[147] The only matter his advocate has put forward particular to this appellant however relates to the fact that Mr Dennis is looking for employment and that the publication of this case may hinder that process. No evidence or illustration of this has been provided.
[148] I am aware that his advocate has provided similar generic submissions in earlier cases and has a personal view of this issue.
[149] I do not however find that this is a situation where there should be suppression of name or evidence or submissions made.
[150] Accordingly, the application for suppression is refused.
Orders

[151] The appeal is dismissed.
[152] The application for suppression of name is dismissed.
[153] There are no issues as to costs.






Judge J H Walker
District Court Judge

Solicitors: Luke Cunningham Clere for the respondent

[1] [2007] NZCA 304; [2008] 1 NZLR 340 (CA)

[2] [2007] NZCA 304; [2008] 1 NZLR 340 (CA)

[3] [2012] NZACC 22 at [24]

[4] [2005] NZAR 193 (HC)

[5] [2010] NZHC 1726; [2010] NZAR 673 (HC)

[6] [2012] NZACC 360

[7] Johnston v Accident Compensation Corporation [2010] NZHC 1726; [2010] NZAR 673 (HC)

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#2 User is offline   Alan Thomas 

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Posted 12 December 2016 - 10:42 AM

The above decision does not appear to be very helpful as it provides no legal foothold one way or the other for the purposes of gaining greater understanding and appreciation of the legislation.

The nearest thing we have two a clue about what might have been on the judge's mind as the following:

[147] The only matter his advocate has put forward particular to this appellant however relates to the fact that Mr Dennis is looking for employment and that the publication of this case may hinder that process. No evidence or illustration of this has been provided.
[148] I am aware that his advocate has provided similar generic submissions in earlier cases and has a personal view of this issue.
[149] I do not however find that this is a situation where there should be suppression of name or evidence or submissions made.
[150] Accordingly, the application for suppression is refused.


So we see that the judge had not really provided any reasons for his judgement other than the applicant did not furnish relevant information to assist the judge with his decision. We also see an inference that the advocate might be trying to fly a kite by seeking name suppression as a matter of course without seeking any justification.
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#3 User is offline   Lupine 

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Posted 12 December 2016 - 04:20 PM

I believe the information provided in many ways points to the lingering abscess that we refer to as the Tosser. The accident time is about right, as is the hearing time, the injury, the workplace mention, obviously the Judge gave a reference to the frustration in the delay for treatment which translates to the claimant having a rant and who else would ask for name suppression on a general claim?

Having said that I would hate for Paul Dennis to be linked to said Tosser if indeed he is not the Tosser but there are some interesting parallels but it is not quite proven yet. We will know soon enough.
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#4 User is offline   greg 

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Posted 12 December 2016 - 05:23 PM

Does prove one thing about ACC case law ; if you are unlucky enough to re-injure
a body part and have not get full medical/legal inputs from the first injury .

Any future ACC injury will then be considered pre- existing.


Also noted was the use of self reporting by the panel.

Were the panel reports ever read prior to review.?
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#5 User is offline   tommy 

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Posted 17 December 2016 - 02:59 PM

that judgement , of above could i ask" piper ", if that was his judgement
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#6 User is offline   greg 

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Posted 21 December 2016 - 04:49 PM

View Posttommy, on 17 December 2016 - 02:59 PM, said:

that judgement , of above could i ask" piper ", if that was his judgement



He has claimed it is not him.

I believe that to be true.
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#7 User is offline   Battleaxe 

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Posted 17 May 2017 - 07:38 PM

View PostLupine, on 12 December 2016 - 04:20 PM, said:

I believe the information provided in many ways points to the lingering abscess that we refer to as the Tosser. The accident time is about right, as is the hearing time, the injury, the workplace mention, obviously the Judge gave a reference to the frustration in the delay for treatment which translates to the claimant having a rant and who else would ask for name suppression on a general claim?

Having said that I would hate for Paul Dennis to be linked to said Tosser if indeed he is not the Tosser but there are some interesting parallels but it is not quite proven yet. We will know soon enough.

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#8 User is offline   Brucey 

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Posted 17 May 2017 - 07:56 PM

This Forum is currently being subjected to Trolling by an individual who refers to himself as He who pays the piper, AKA Colin Wightman, and his forum girlfriend Battleaxe, AKA Lianne Mylie.


This Troll likes to throw around accusations so that people feel they have to justify themselves to him. This is standard Troll practice. No one owes this Troll any sort of explanation and anyone who engages with this Troll thus is simply making the Troll feel relevant.

This Troll likes to target women and Sensitive Claimants especially though the Troll will attack and abuse anyone who dares to fail to follow his line. He has made comments that could be seen as inciting criminal activity. The Troll likes to think he has some special secret process where he can make ACC accountable but this boasting is the actions of a Fantasist. New members are encouraged to avoid engagement with this Troll.


He who pays the piper, AKA Colin Wightman, made the following threats against a man called Douglas Weal, falsely believing me to be that person.

He who pays the piper said:



posting # 230562

... when I suggested the possibility of some very kind friends of mine dropping into see him in CROMWELL to give him some healthy advice.

Even more funny, I'm still waiting for the call from down there.

p.s. And no DOUGLAS, one of my mates trains Alsatian dogs, for the Police, so don't rely on that


Posting # =230434

...

They will take you to the outskirts of CROMWELL and give you two choices.


Posting # 230425


Get yourself a new name because I have a lot of friends in the CROMWELL area who, like me, hate scum-bags.


Posting # 230362


I can't wait to catch up with you in CROMWELL to see what sort of scum bag life you live.

I'll drop in at the local first to see if they can give me directions.




Posting # 231625

For those who haven't noticed, ever since "Brucey" was flushed out as to who he actually is, he not only went into defense mode against denying that he is DOUGLAS WEAL who ALAN THOMAS tells us is very dangerous, but has chosen not to make my upcoming visit to him in CROMWELL as welcome, suggesting that I will need to come well armed.

PIPER.

He who pays the piper, on 19 January 2017 - 11:20 AM, said:If DOUGLAS WEAL is not the person who has been stalking me on this FORUM [2000 postings on attack] then my meeting with him will not take long, except that I want to hear his version of the ALAN THOMAS "frame-up" before I leave this lovely town of CROMWELL on my way further south.




He who pays the piper, on 21 January 2017 - 08:27 AM, said:

The only enemies he has are the fruitcakes that framed ALAN THOMAS.

He handed over the evidence of a death threat from DOUGLAS WEAL [Donald Duck with bullet holes around him] which showed that TOMCAT & ANGRYMAN were working with ACC to bring false charges against ALAN THOMAS as DAVID BUTLER knew the truth.

A "double crosser" who was under the 'gun'.

Discouraged from turning up at court.He who pays the piper, on 04 January 2017 - 07:27 PM, said:

Just when I thought that at least 80% of contributors to ACC forum sites were fruitcakes, fraudsters and freaks, I kindly received today damning evidence that there is an almost conclusive chance that TOMCATS mate DOUGLAS WEAL is none other than our simpleton BRUCEY [Former: Angryman] who has spent the last 33 years trying to upgrade himself to ACC so that he can grow even fatter and lazier in his latest hiding place down there in CROMWELL.

For those less familiar, this is the bloke that ALAN THOMAS tells us master-minded the bomb plot frame-up against him and gave evidence to that effect as a CROWN WITNESS in the District Court.

Before I close the book on this little saga I would like to give this half-wit calling himself BRUCEY an opportunity to defend himself of this identity connection.

Rather than repeating himself for the last 1500 posts [the work of a total fruitcake] I will be so kind as to give him the chance to defend himself.

Over to you DOUGLAS.

PIPER.


He also had the following comments to make about my daughter who is a rape victim.



" Is your daughter a simpleton like you Brucey?

Brucey do you mind me asking please what does Lupine charge for a duped claim of “toxicity” and one for “promiscuity”?

Good to see simpleton Brucey coming up with something original. To think he bred his own kind. A downgrading of the human race.

I’m guessing Brucey is playing the “mentally ill” card [genetic related] while his daughter [a product of the old man] is playing the “sensitive claim” card. A family of scabbers.

While Brucey of course is on a “family deal”.

I’m sure they are looking after you. 10 years on the scab and growing. As for the “family deal” the apple never falls far from the “tree”.
And dear old simpleton Bruce with a daughter who is apparently as simple as him."

It would appear that Wightman has a history of trolling and causing trouble. http://www.racecafe....an-here/&page=3


Battleaxe is on record as supporting piper in his attacks on me and has stated the following.



Silence speaks louder than words, Piper. I think that the above posting speaks volumes and that Douglas Weal is indeed "Brucey" previously "Angryman".

Perhaps Alan Thomas can fill in the gaps?




I don't argue against your position that members are free to use a moniker (nom de plume) and that you also respect their right to privacy, however, it is not fair or reasonable to think this with only certain members in this case ""Angryman" / "Brucey". So, while you jumped here to defend "Angryman's" / "Brucey's" right to privacy, you have remained silent on the right to privacy of Piper and myself. Why is this Alan? If the boot fits one foot it must surely fit the other foot?



Alan, you did take sides --- read your posting again please. I also ask that you point me to a posting where you have ever pointed out that Piper and I have a right to privacy too as obviously I missed that.

I did not speculate about who "Brucey" is. Piper did, but that said, I agree with his view that "Angryman" / "Brucey" is Douglas Weal. He was given the fair opportunity to respond but chose not to do so. As I have already commented, silence speaks volumes.

You are very different to other members, Alan, and if the truth be told this fourm has 'gone to hell in a handbasket' because of you and Lupine's cohort of "trolls" turning it into a battleground where innocent bystanders are being caught up in your fight for territory, power and control.

I bet that if you withdrew your membership from this forum then it would be returned to its former glory in a very short space of time.

http://www.100megspo...anna/010115.txt
_______________________________________________________________________________________________________________________________________________________________________________________





Angryman was my previous moniker, and does not belong to Douglas Weal.

I have never been involved in any way shape or form in any threats or in the bringing of false charges against anyone.


Because I think you are a very dangerous individual Colin Wightman and I believe Douglas Weal could very well be in danger I am telling you that My name is not Douglas Weal.

My name is Bruce, my friends call me Brucey, but you can call me sir.

I have let you rabbit on for long enough, time to show the forum what a complete fool and a danger to society you are.





(1) A person commits an offence if—
(a) the person posts a digital communication with the intention that it cause harm to a victim; and
/>/>/>/>/>/>/>/>/>/>/>/>/>/>/>/>/>/> posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and
© posting the communication causes harm to the victim.

(2) In determining whether a post would cause harm, the court may take into account any factors it considers relevant, including—
(a) the extremity of the language used:
(/>/>/>/>/>/>/>/>/>/>/>/>/>/>/>/>/>/> the age and characteristics of the victim:
© whether the digital communication was anonymous:
(d) whether the digital communication was repeated:
(e) the extent of circulation of the digital communication:
(f) whether the digital communication is true or false:
(g) the context in which the digital communication appeared..

(3) A person who commits an offence against this section is liable on conviction to,—
(a) in the case of a natural person, imprisonment for a term not exceeding 2 years or a fine not exceeding $50,000:
(/>/>/>/>/>/>/>/>/>/>/>/>/>/>/>/>/>/> in the case of a body corporate, a fine not exceeding $200,000.
(4) In this section, victim means the individual who is the target of a posted digital communication.


DON'T FEED THE TROLL Colin Wightman.or his mate Rex, AKA Philip Bonner.


This Forum is currently being subjected to Trolling by an individual who refers to himself as He who pays the piper, real name Colin Wightman. This Troll likes to throw around accusations so that people feel they have to justify themselves to him. This is standard Troll practice. No one owes this Troll any sort of explanation and anyone who engages with this Troll thus is simply making the Troll feel relevant.

This Troll likes to target women and Sensitive Claimants especially though the Troll will attack and abuse anyone who dares to fail to follow his line. He has made comments that could be seen as inciting criminal activity. The Troll likes to think he has some special secret process where he can make ACC accountable but this boasting is the actions of a Fantasist. New members are encouraged to avoid engagement with this Troll.
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