IN THE DISTRICT COURT

WELLINGTON REGISTRY ACR 366/11

BETWEEN MADELEINE JANE FLANNAGAN

Appellant

AND ACCIDENT COMPENSATION

CORPORATION

Respondent

AFFIDAVIT OF MADELEINE JANE FLANNAGAN

Filed by: John Miller John Miller Law

Hannah Warehouse

Suite 15, Level 1

13 Leeds Street

PO Box 6314

Wellington

Ph: (04) 801-5621

Email: info@jmlaw.co.nz Fax: (04) 8015622

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I, MADELEINE JANE FLANNAGAN, Associate Barrister and Solicitor of

Massey, Auckland swear as follows:

1. I am the Appellant in this proceeding.

2. On 26 March 2008 I was in a car accident that has radically changed

my life.

3. The Respondent, the ACCIDENT COMPENSATION CORPORATION

(“ACC”), initially provided cover for this accident but they have

since withdrawn it on the grounds that I had a pre-existing

degenerative condition. Not only do I dispute this diagnosis, I have

provided medical opinions to the court to contest it, but I also

believe that the process by which ACC gained this diagnosis lacked

objectivity; it was biased in favour of a pre-determined diagnosis.

Background

4. At the time of the accident I had no pain issues. I took no

medication. No disability affected my function; if there was

something physical I wanted to do, I did it. I rarely attended my

doctor’s surgery. I was not in receipt of any treatment from any

other health provider. My weight was within the normal range for

my height. I was physically active.

5. I was the primary earner in my household. I worked full-time for

Sanitarium Health Food (“Sanitarium”) reporting to both the

Commercial and Human Resources Managers. My job titles at the

time were Personal Assistant to the Commercial Manager, Human

Resources Co-Ordinator and Legal Assistant. At that time

Sanitarium sourced their legal counsel externally; I liaised with

both them and the managers I reported to.

6. I also studied part-time. As part of my remuneration package

Sanitarium paid me to resume my partially completed law studies

part-time at the University of Auckland; they paid for my fees, text-

books and for my time to attend studies.

7. In addition, after-hours I engaged in equestrian sports. Three days

before the car accident I competed on my daughter’s horse, a

temperamental part-Arab, in a one day event involving dressage,

show-jumping and cross-country elements. The horse was

incredibly hyperactive at this event, and it took a lot on my part to

get him to behave, focus and go on to win the competition. There is

no way I would have contemplated riding this particular horse or

competing in this event on even a quieter horse if I had neck or pain

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issues – I would not do so today. I annex a photograph of me riding

in this event as Exhibit “A”.

8. In addition to my full-time work, part-time study and sport, my

husband MATTHEW ALEXANDER FLANNAGAN (“Dr Flannagan”)

and I were raising 4 children, two of whom have high-functioning

autistic spectrum conditions: one severe, one moderate.

The accident and its affects

9. On the afternoon of 26 March 2008 I stopped at a red light on Alten

Road in Auckland City. I was on my way to a law lecture from work,

after that I was heading to the pony club to join the adult evening

ride. I stopped at a red light. With the handbrake on I turned to get

something from my purse, which was sitting on the passenger seat.

10. At that moment, in that twisted to the side position, my car was

struck from behind by another vehicle. The impact sent my car into

the car in front of me.

11. At the point of impact I was aware that my body had struck the

steering wheel with some force; I felt a jolt and pop in my neck as I

was flung forward. I knew immediately that I had injured my neck.

It did not hurt much initially but I could detect numbness and

tingling in my all of my extremities – upper and lower - and a

tightening in my muscles; I reasoned I should not try to get out of

the car or move as I was probably not feeling the full injury.

12. The ambulance officers removed me from my wrecked car and took

me to the hospital. I was told I had whiplash and I just needed 2-3

days off and a couple of weeks taking it easy, and then I’d be right.

As my medical notes show, this proved to be very wrong. I soon

found myself ordered off work, I was told to rest and not move

much as I waited for further investigations to be carried out.

13. I lay on the couch; I had very limited function because I could not

sit or stand for very long, driving, walking, sitting at the computer,

cooking, cleaning, or playing with my children was very difficult.

14. I was in horrific pain. I would routinely have days where no amount

of pain drugs could relieve the pain. The pain drugs took my focus,

memory and concentration; I wasn’t me anymore. After some

months the pain drugs caused severe inflammation of my stomach;

I was admitted to hospital over this.

15. I tried to hold on to the life I had had.

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16. My employer hired temps; I did what I could to assist from home.

Dr Flannagan attended my law lectures, took notes and taped

classes for me. I fought the pain and drug fog and made myself stay

on top of my studies. I had to sit my examinations as a disabled

student under special conditions; some of the worst pain I

experienced was during those exams and the drugs I took to

counter this saw me spaced out in the extreme. My performance

was affected, I got rubbish grades - which I found very hard to

accept - but I was passing even if I could only do one or two papers

at a time.

17. I was determined that I would not let the accident rob me of the law

degree I had begun in 1993, which had been on hold for 8 years; I

had just resumed it at the beginning on March 2008. The Law

School had made it patently clear that my first year back after a

long break, having transferred from another University, was a

probation year that I had to complete or I would not be able to

continue studying at Auckland. Law is not a degree one can do by

distance.

18. I tried to find ways of meaningfully interacting with my children.

My children had quickly learned that they now had a mother who

sat on the side-lines, if she was there at all, and often said “I can’t

because I am in pain.” I was not able to be the mother I wanted to

be, that my children needed – especially my special needs children.

19. I hung on. I did everything the doctors, physiotherapists and the

occupational therapists said. The surgery came and went and little

really changed in terms of my symptoms, pain levels or function.

After holding my job for 9 months, at the beginning of 2009,

Sanitarium had to let me go.

20. I fought depression at the loss of function, the loss of my career, my

sport, the damage to my relationships, the exhausting pain. I

continued to try to move forward with what I could. I did rehab,

when ACC refused to keep paying for the treatments that assisted

me to cope with the pain and to have improved function through

the week, I tried to fund them myself.

21. When I could not sustain that I researched alternatives, I did the

exercises I had been taught at home, Dr Flannagan tried to learn

how to do what my osteopath would do when my muscles and

nerves were tight and knotted, which always brought such relief;

his efforts, whilst much appreciated, were not the same. I tried to

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keep up with my university readings, taped lectures, notes and

assignments.

The exit process

22. On Friday 23 April 2010 I learned that ACC wanted me to attend a

medical appointment in South Auckland with BRIAN OTTO (“Mr

Otto”) to review my case the following Monday, 26 April 2010. (My

case manager had phoned me to confirm my attendance at the

appointment.) This was the first I had heard of it, I had not seen any

letters from ACC.

23. There were several practical problems with me attending this

appointment on the day in question and at such short notice.

a. Mr Otto’s South Auckland office was a good 45 minute drive

from my home in West Auckland.

b. The appointment was at the same time as one of the two

university lectures I attended each week.

c. Our severely autistic son who does not attend school would

require care.

24. I had only recently reached the point in my recovery where I found

I could just manage the 15 minute drive to University, the 50

minute lecture and the 15 minute drive home if I walked in

between the driving and sitting for 5 minutes and did nothing the

next day. I knew that it was unlikely I would be able to tolerate

driving myself to Mr Otto’s offices. Dr Flannagan would have to take

me.

25. Bus was not an option as buses take longer than cars and the longer

I sit for the greater the pain. Further, buses do not have seatbelts so

one has to hold oneself upright against the motion of the bus, which

engages muscles around the neck for much of the duration of the

journey, which makes the pain worse. I did not want to risk being in

the state of going crazy in my mind from the pain on a bus; it is an

embarrassing state to be in in front of strangers, in front of anyone.

26. This meant I could not send Dr Flannagan to tape my lecture and I

would miss my lecture. I did not know anyone who attended the

lecture as I only took one paper at a time and never hung around

the law school to socialise with any other students due to the

priority that pain management took over everything. There were

no classes between the phone call and the appointment for me to

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ask anyone to help. I knew from experience that the Law School

could not tape them.

27. I also quickly found we would have to take our son with us. Our

only alternative caregiver for him at that time was not available.

This was a problem as his behaviour at that time was frequently

difficult in any environment that was not his home environment.

28. In light of these issues I rang Mr Otto’s office and asked if I could

reschedule, they told me that they could give me an appointment in

less than two months’ time but I would have to check with my case

manager if that was okay.

29. I phoned my case manager and asked if I could change the time and

day of the appointment; I explained the obstacles arising from the

lack of notice and the time and day of the appointment, I stressed

that the point of completing the degree was about moving forward,

avoiding depression and being able to earn decent money from a

part-time wage in the future.

30. My case manager said he would ask a supervisor but told he

doubted permission to change the appointment would be granted

saying “we’ve been waiting for you to be able to see Mr Otto for

ages”; this was news to me. He phoned me back and said no, it was

too long a period for ACC to wait.

31. Little had changed in my condition, I did not understand the rush;

the phone call to confirm my attendance also seemed out of step

with my experience of ACC.

32. If ACC wanted me to have this appointment sooner then I could

make that happen; I looked up Mr Otto’s qualifications, looked up

other specialists with the same qualifications, phoned around and

asked if they could do the same sort of appointment, making sure I

used the same terminology my case manager had used. I found

another specialist could see me much sooner, in about a month, to

perform the same task. This was at a time that did not clash with

my studies, that I could get care for my son on, whose office was

closer. I phoned my case manager back and suggested this. He

checked with his supervisor and said no, “it has to be Mr Otto.”

33. This inflexibility both upset me and made me suspicious. Why

couldn’t they be reasonable? Why were ACC so determined and

desperate to have me see Mr Otto as fast as possible and only Mr

Otto? It was clearly important to ACC that this particular doctor see

me.

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34. When I asked my case manager for an explanation he got

aggressive with me. He told me that ACC did not care if my pain was

worsened by the trip there; they were allowed to send me to any

specialist in Auckland. ACC did not care if I had trouble getting

there, if I had childcare issues, if I had a lecture because they were

paying me compensation, therefore they were entitled to demand

my availability.

35. The next day I received a letter from ACC repeating some of this,

which I attach as Exhibit “B”, the letter said:

“As already advised, you risk losing payment of your entitlements because we asked that you attend a medical case review with Mr Otto on 26 April 2010 and you advised that you may not do so.

You have explained that you may not attend the appointment with Mr Otto because the time clashes with a lecture that you consider important to be present at.

We do not accept this explanation is reasonable in the circumstances. Therefore, unless you attend this appointment, we will not continue to provide entitlements on your claim.

If you do not keep this appointment, or give us a reasonable explanation as to why you have not done so, we will not provide weekly compensation from 27 April 2010.

Once stopped, the entitlement will only restart if you attend a

rescheduled appointment with Mr Otto. Payments will only be

backdated in exceptional circumstances.”

36. I had not at any point refused to go or said I would not go. I had

simply asked if there could be some flexibility and understanding.

My doing this was slated as “unreasonable” and was met with a

high-handed tone. Rescheduling with any other equally qualified

specialist to perform the same task was not an option. ACC were

clear, I had to see only Mr Otto. I would lose my ability to pay rent

and buy food for my family if I did not see Mr Otto. I could only get

this reinstated if I made an appointment with Mr Otto. I was

suspicious, what was it about Mr Otto that made him so important

over other doctors?

37. On 26 April 2010 I missed my lecture and Dr Flannagan duly drove

me to attend the scheduled appointment with Mr Otto. Mr Otto

called my name and led us from the waiting room into his

examination room and gestured to the chairs. I sat down. As he shut

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the door and walked around to his desk to his chair he announced:

“we are here today to discuss your degenerative condition.”

38. I shot a look at Dr Flannagan who is an analytic philosopher who

works in bio-ethics, I could see the use of the term “degenerative”

was not lost on him, and then said as calmly as I could “what do you

mean by degenerative?” Mr Otto looked at me like I was being

smart, paused and said “precisely that.”

39. I said, “I’m sorry, I am confused, I was in a car accident, I have had

surgery, I am slowly improving, not degenerating. I do not have a

degenerative condition; I am suffering the effects of an accident.”

He looked at me in a pointed manner and then changed the subject

to asking basic background questions related to my condition.

40. A few minutes after making his opening statement that my

condition was degenerative, Mr Otto asked me if I had brought my

x-rays, MRI and bone scans. I told him that I had not been asked to

and that the other specialists I had seen had all been able to log into

some central record holding place and view them so it did not occur

to me to bring them. He told me that his office did not have that

kind of technology but he would request copies of the reports and

films. I offered to send them to him but he said not to bother as ACC

had only sent him a letter which didn’t say much so he was going to

have to request various things from my file anyway.

41. In this moment it was clear that Mr Otto had made his statement

about the purpose of the appointment being to discuss my

“degenerative condition” in advance of asking me a single question,

without having examined my x-rays and scans and on the basis of

whatever ACC had communicated to him about me.

42. It was also clear that Mr Otto had conducted the appointment with

a predetermined purpose: to determine a degenerative condition.

He had decided this was my diagnosis before the examination,

before being in receipt of the relevant medical evidence. I did not

have confidence his diagnosis post-appointment could be objective

or unbiased.

43. By the time the appointment was over – it was prolonged by my

son’s behaviour - I was in horrible pain on the way home. It took 2-

3 days to recover. I struggled to sit and concentrate through my

next lecture as a result. I was only able to get patchy notes off other

students for the missed class.

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44. My case manager telephoned me not long after this appointment to

tell me I was being exited from cover in on the basis of Dr Otto’s

report. I told him this was ridiculous, I was clearly not recovered

from the accident. I shared with him the basis for my belief that Mr

Otto had pre-determined his diagnosis of “degeneration” in

advance of examining both the evidence and me. I said to him that I

felt I had been set up, that I had been sent to Mr Otto precisely so

this outcome could be achieved for ACC. My case manager laughed

and said “good luck proving it.”

45. On reading Mr Otto’s report I could see his diagnosis had not

changed from what he said it was when I first walked into his office.

I read that my ongoing pain, numbness, sudden losses of strength,

loss of function, etc were nothing to do with an accident; they are

the result of a pre-existing degenerative condition. In light of this

pre-existing condition I had apparently expected too much from the

surgery. I found this amazing given the dramatic difference

between my life, ability and complete absence of pain pre 26 March

2008 and post.

46. Apparently, my autistic son, whom Mr Otto had witnessed acting

out in his office more than once, might also be a cause of my pain.

Also, the fact I had, for a relatively short time in my life – 5 years,

gone from a healthy weight to being obese and then back to healthy

weight meant that could have been a pre-existing cause of my neck

pain.

47. I found these two points to also be ridiculous. Dr Flannagan is the

primary caregiver of our son; he does not complain of neck pain.

48. Further, it is common knowledge that any risk obesity causes to

discs arises from the stress being placed on the discs of the lower

spine by the excess weight the person carries on their upper body.

My head did not get that much fatter when I got obese, I was not

obese for very long, and I never had pain or function issues prior to

26 March 2008. I fail to see how my neck discs could have been

harmed by my obesity but not my lower back, which is fine.

49. With some irony I observed on the morning of the review hearing,

21 April 2011, the New Zealand Herald had reported on the

decision in Liangfang Lu v ACC [2011] NZACC 45. Judge Beattie had

found that ACC had wrongly suspended payments to Mr Lu on the

basis that his back pain was caused by degeneration. The

orthopaedic surgeon in the case, Mr Brian Otto, had diagnosed

degeneration without seeing the relevant MRI scan. Reading the

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article seemed like a case of deja vu. Mr Otto was found to have

asked Mr Lu for his scans and x-rays, making it clear he had not

seen them after he had already diagnosed Mr Lu as having a

degenerative condition. The court was critical of Mr Otto for doing

this. I brought the case to the reviewer’s attention and pointed out

the clear similarities, she made no note of it in her decision.

50. Dr Flannagan also gave evidence as to Mr Otto’s diagnosis being

pre-determined based on what he had witnessed of ACC’s pressure

and insistence that I only see Mr Otto and Mr Otto’s diagnostic

process once we arrived at his office. Dr Flannagan also stressed

the fact that Mr Otto explicitly stated the purpose of the meeting

was to get this diagnosis, and the fact he had come to a degree of

certainty on this before examining me or my medical records.

The cost

51. To survive in the wake of being exited and finding ourselves trying

to exist on about than $470 per week (our rent was $300 and we

had 4 children). My family and I reduced both our food bill and the

quality of food we ate. We never went anywhere as we could not

afford to. Everything we needed to replace had to be second-hand

or borrowed. We lived in a really run-down house, which leaked

when it rained, to save money.

52. Dr Flannagan tried to find full-time work but his own disabilities,

the nature of his skill-set, the limited availability of work in his

field, and our son’s care needs have been the reason I have been the

primary caregiver. He picked up part-time work here and there but

it was difficult because our son and I both required care during the

day and if I was having difficulties, I could not care properly for our

son by myself.

53. Our existence was miserable. We had no money, I hurt all the time,

we all felt like we had faced a huge injustice - we still do. It all

contributed to a lot of tension in our home as we struggled to stay

afloat amid the recession and deal with these things. It was very

hard on my children who did not deserve this.

54. I continued to do all I could do to get us forward. I did rehab

exercises. I researched alternatives. I kept studying. Although it

took me 3 years of doing only 1 or 2 papers at a time to knock off

what would have taken me 3 semesters full time, and I did not get

the grades I was capable of getting, I finally graduated.

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55. I was admitted to the Bar in 2011 and I got a part-time job in a law

firm at the end of that year; I was only medically cleared to work 20

hours. Only in the past year have I gained a 40 hour a week medical

certificate, but it states I have limitations. I have a career again, but

a small firm in Orewa is not the same as being the In-House counsel

for one of New Zealand’s best known brands, which is where I

would have been today.

56. Today I still carry codeine and tramadol at all times even though

now my pain is generally well managed with natural supplements;

however, without the supplements the pain can still render me

couch-ridden. I still have days where pain takes me out completely

no matter what I do or take. I still hurt every day. I still say “I can’t”

a lot to my children, colleagues, friends and family.

57. My sport remains over. I have only ridden a horse twice in the 5

years since the accident; about a year after the surgery, at the end

of 2009, my doctor said I could do Riding for the Disabled (“RDA”). I

rode for an hour on a very quiet RDA horse, in an enclosed arena, at

a walk, with an RDA catcher holding a lead-rein walking next to me.

58. About a year ago, 4 years after the accident, with a lot more rehab

behind me, I tried riding a friend’s very quiet horse in an enclosed

area. Whilst this felt better, and I felt ok doing a little more than

walking, I still was aware of my tendency to suddenly lose strength,

randomly have a muscle spasm, be overcome with tingling and

numbness or be hit by a pain attack.

59. I am an experienced enough equestrian to know that RDA remains

the only safe option for me at this time. It remains very hard to

accept this when I was competing on a very difficult to control

horse only 3 days before the car accident.

60. My condition continues to improve, albeit incredibly slowly so

some hope remains. This is tempered by the fact that every day I

live with the knowledge that if I happen to have a day where I wake

without pain I will have pain by bed time. Every day I know that my

pain might rise to the point where I have to abandon my plans and

commitments or face enduring extreme pain – being a lawyer with

commitments to the court has more than once proved that the

latter is not an idle fear.

61. Every day I know that anything I pick up could end up on the floor

if my hands suddenly open if my muscles suddenly spasm or lose

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control. I know that the tingling and numbness I often feel in my

upper body is generally safe to ignore, it is just annoying.

62. None of these concerns featured in my pre 26 March 2008 life. They

came into my life when I had a car accident.

_______________________________ Madeleine Jane Flannagan Sworn at Orewa on 22 March 2013 before me: _______________________________ Solicitor of the High Court

A

THIS is the Document marked with the letter “A” mentioned and referred to in the annexed

affidavit of MADELEINE JANE FLANNAGAN sworn at Orewa on 22 March 2013 before me:

____________________________________

A Solicitor of the High Court of New Zealand

Madeleine Flannagan riding in the Massey One Day Event on 23 March 2008

B

THIS is the Document marked with the letter “B” mentioned and referred to in the annexed

affidavit of MADELEINE JANE FLANNAGAN sworn at Orewa on 22 March 2013 before me:

____________________________________

A Solicitor of the High Court of New Zealand