Accident Compensation Corporation v Rutter

IN THE DISTRICT COURT AT AUCKLAND [2013] NZACC 221 ACR 565/10 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT ": BETWEEN ACCIDENT COMPENSATION CORPORATION Applicant AND DENISE RUTTER Respondent Hearing: Decided on the papers at Auckland Judgment: 26 July 2013 JUDGMENT OF JUDGE RODERICK JOYCE QC Application [1] This was an application by the Corporation for leave to appeal to the High Court on a question of law the 5 November 2012 judgment of Judge Beattie holding that a prior decision of the Corporation determining that Ms Rutter had vocational independence could not be sustained, [2] In its formal application for leave the Corporation pleaded that the Court's finding that the vocational independence medical assessor did not have all relevant information was not open to the Court on the facts, and thus in legal error. The judgment [3] This concerned a conventional appeal against a Corporation determination of vocational independence. The Corporation's medical assessor was Dr Hartshorn but previously Dr Ruttenberg had seen and examined Ms Rutter on 3 occasions, those in the years 2002, 2007 and 2009. [4] Having noted that state of affairs Judge Beattie had continued: [13] .. the relevant matters from his assessments and advice were that it was his opinion that because the appellant had been out of the work environment for a number of years, and the fact that she did have ongoing problems associated with her covered injury, it was appropriate that a general return to work plan be adopted in terms of ongoing vocational rehabilitation. [14] That was the advice given by Dr Ruttenberg to the respondent in 2007 and in December 2009, and I must take the view that the respondent elected not to have any regard to that advice, and simply turned around more or less directly after Dr Ruttenberg's 2009 report, and commenced the vocational rehabilitation assessment procedure, and with the occupational assessment being carried out on 12 January 2010. [5] Earlier on - at his para [12] - the judge had recorded as a matter of fact that Dr Hartshorn was not provided with all of the earlier Initial Medical assessments. Following the passages from his judgment just set out above, he returned to this issue and wrote: [15] The comments I have made about the respondent's failure to provide Dr Hartshorn with the earlier medical reports is a matter which is identified in clause 28(2) of Schedule 1, which is the statutory provision relating to the conduct of the Medical Assessment, and where at para [2] it is stated: "The Corporation must provide to a medial assessor all information the Corporation has that is relevant to a medical assessment". In light of this appellant's background and the lengthy period of incapacity and it being a situation where it was not going to improve, but rather likely to worsen, as was first advised by Dr Guadagni back in 1998, I consider that the failure to provide all the relevant reports to Dr Hartshorn causes his assessment to be one not made with all relevant information. [16] Whilst his report does refer to documentation received, including an Initial Occupational Assessment Report and an Initial Medical Assessment Report, there are no further details of which report he is referring to, and there is simply no mention at all of any earlier assessment reports in the course of his assessment commentary. Argument-for Corporation 6] It was contended for the Corporation (by way of a rehearsal of the arguments it would run given leave) that; [17] There are two items of evidence that go to what information was provided to Dr Hartshorn for the purposes of the VIMA. Those items of evidence are Dr Hartshorn's own . account of the information he received in the VIMA and the relevant ACC 192 form, which is the list of the documents referred to by Dr Hartshorn. [18] Dr Hartshorn opens the VIMA by saying: "Documentation was received and reviewed as mentioned on the ACC 192 form. This includes but is not limited to: [Here Dr Hartshorn lists 13 documents, including "Initial Medical Assessment Report", which (it) can be inferred was a reference to Or Ruttenberg's December 2009 Initial Medical Assessment that directly proceeded the VIMA] The received information, when combined with history taking and clinical examination was adequate to form an opinion regarding work capacity.' [19] It is noted that the ACC 192 list of documents that were provided to Dr Hartshorn runs to three pages long, so it was appropriate for Dr Hartshorn to merely confirm that he had received and reviewed the documents by reference to that list, rather than attempt to relist them all. [20] For the same reason, the entire ACC 192 list of documents provided will not be reproduced in these submissions. However, the ACC 192 did include (referenced by author, nature of report, and date of report) all of the reports listed in the judgment, including all initial medical assessments, except Dr Ruttenberg's 8 December 2009 Initial Medical Assessment (and of course the VIMA itself). [21] Dr Ruttenberg's 8 December 2009 Initial Medical Assessment was referred to separately on the front page of the ACC 192 as merely "Initial Medical Assessment Report" because it was the initial medical assessment that led directly to the VIMA. In any case, the judgment did not make a finding that the most recent December 2009 Initial Medical Assessment was not provided to Dr Hartshorn, the finding refers to only earlier initial medical assessments. [22] ACC submits that: 22.1 There is no evidence in the VIMA or in the ACC 192 or in any other document that could support the finding (that Or Hartshorn had not been provided with all relevant medical information prior to completing the VIMA). 22.2 The evidence in the ACC 192 and the VIMA is inconsistent with, and contradictory of the finding. 22.3 The true and only reasonable conclusion on the evidence contradicts the finding; and 2.2.4 The finding was incorrect. [7] The argument was then foreshadowed that that (the said to be incorrect) finding led to the judgment hinging on a wrong conclusion, namely that the Corporation had been in breach of the Act. Response for Ms Rutter [8] This included the proposition that: [12] It may be Dr Hartshorn had the reports but his inadequate summary under list of received documentation does not assist any conclusion of him having, or not having, the reports, despite the evidence in the ACC 192 form he received (which has never been before the Appeal Authority (sic) hearing, I understand: but, Dr Hartshorn declares; the received information when combined with history .. and examination was adequate ... [13] The manner of his report is what puts the report for Dr Hartshorn at risk regardless of whether or not he had, or considered, the reports'. [9] Ms Rutter's advocate then went on particularly to highlight para [17] of Judge Beattie's judgment where he said: In this case as I have noted, the appellant was 61 years of age, had a lengthy medical history of her covered injury and had not been in any work at all for some years, and where the advice of a specialist who had considerable knowledge of the appellant and her medical condition had determined that a gradual return to work on a part-time basis would be desirable. This is a situation which I find does have relevance when determining whether or not the decision based on the assessment of Dr Hartshorn can be accepted, [10] It was accordingly submitted that is was plain that the judge had considered the entirety of the evidence in reaching the conclusions that he did. It then submitted that in terms obviously argued to be crucial to his conclusion the judge had reinforced earlier observations when at [19] he said: I have struggled somewhat with this submission. The best I can make of it is that it alludes to issues of overall quality of reporting, It is the case therefore that I find the decision of the respondent determining the appellant's vocational independence cannot be sustained. There was simply no attempt by the respondent to have the appellant engage in suitable work-types on a progressive basis, as had been recommended by Dr Ruttenberg, and in these circumstances I find that the decision of vocational independence is not appropriate in the case of this appellant's circumstances, particularly her age, and history. Corporation response [11] This included that; Ms Rutter appears to have misunderstood the ground for ACC's application for leave to appeal. ACC does not assert that the ultimate decision in the judgment was an error of law in and of itself. Rather ACC's position is that the finding that Dr Hartshorn had not had all medical evidence available to him when he completed the VIMA was not available on the evidence, and that this finding is an error of law that was relied on by the Court when reaching its judgment. Accordingly, much of Ms Rutter's submissions, address whether the Judgment was substantively correct. This is not relevant to the present application. The Court's immediate request [12] After this application was referred to me and, first having read the file I issued this minute: The application for leave to appeal to the High Court on a point of law the 5 November 2012 judgment of Judge Beattie has been referred to me. After a preliminary look at the application I am left unsure as to precisely what evidence was before Judge Beattie concerning the scope of the materials made available to Dr Hartshorn. Was the only information the Judge had on that score what the doctor set out in his report under the heading "list of received documentation" or was there more: in particular, was the ACC 129 form that is referred to by the doctor (and also referred to in the current submissions) in evidence before the Judge'? [13] Counsel to the Corporation responded to say: 4. ACC provides a copy of its entire file (other then privileged documents) to the Court when an appeal is filed. That is what happened in this case. Accordingly, both the ACC 192 form setting out the documents referred to by Dr Hartshorn, and Dr Hartshorn's report itself was before the Court when it reached its 5 November 2013 judgment. 5. The ACC 192 form was not amongst the bundle of documents provided to the Court by ACC in advance of the hearing itself, nor was (it) in amongst the documents handed to the Court by counsel for the appellant. This was because the issue of whether all medical reports had been referred to Dr Hartshorn had not been raised by the appellant prior to the hearing (and indeed, was not raised either by the appellant or the Court at the hearing). Dr Hartshorn's report was in the bundle provided to the Court by ACC. 6, . As set out above, both the ACC 192 form and Dr Hartshorn's report were before the Court. [14) With that intimation the applicant sought to introduce a copy of a pro-forma type letter dated 10 September 2010 addressed to the Accident Compensation Appeals Registry, one which had apparently covered the provision of the Corporation's document file, of a transcript of the review hearing proceedings and of the reviewer's decision to the registry. Discussion [15] Under s 154 of the Act the Corporation has a duty to make the last mentioned materials available to the registrar. But that does not mean that they thereby, and without more, come to be part of the evidence before the Court. (16] For a long time now it has been the practice of all civil courts across the country (High and District) to require the provision of documentary evidence in bundle of documents or like form and format - indeed, of more recent times, relatively speaking, such requirements have become a significant feature of Court rules. [17] Section 150 of the Accident Compensation Act 2001 says that: An appeal under section 149 is dealt with in accordance with the District Courts Rules made under section 122 of the District Courts Act 1947, as modified by this Act and any regulations made under it. The appeal before Judge Beattie was one under s 149. [18] Although the Injury Prevention, Rehabilitation and Compensation Review (Review Costs and Appeals) Regulations 2002 - which prescribe rules for the conduct of appeals - exclude from application Part 14 of the District Courts Rules 2009 (which deal generally with appeals to District Courts) there is nothing in those regulations to modify (for the purposes of a s 149 appeal) this Court's general rules concerning the production of documentary evidence. [19] Rule 3.65 of the District Courts Rules 2009 incorporates by reference the provisions of Part 9 of the High Court Rules that deal, inter alia, with how documents are brought before the Court. That, to put it simply, being by way of a common bundle of documents, incorporation of such in same then having specified evidential consequences [20) But if a document is merely provided to the registry by the Corporation in the discharge of its s 150 obligations and not later put before the Court in the common (or for that matter either party's) bundle, or separately introduced at the hearing, then it is surely not in evidence. Most certainly, the judge will be quite unaware of it, 21] Turning to another topic, I note the assertion of counsel for the Corporation that no issue was raised by Ms Rutter at the hearing concerning the sufficiency of the documentation put before Dr Hartshorn when he was asked to report, and I do not understand Ms Rutter's advocate to dispute that. So it appears as a point identified by the judge himself when writing his judgment. 22] Had it appeared that the judge's decision had turned simply, or even substantially, on that perceived by him gap, then that it was a point apparently not raised with the parties at or after the hearing (so that either or both of the parties might respond to it) could conceivably have raised other issues. [23] However, and on a fair reading of the judgment as a whole - and while, as I acknowledge, the judge devoted several paragraphs to that issue - it appears to me that what, in fundamental terms, turned the tide in favour of the respondent was not that issue at all, but rather the one captured by the judge in para [19] of his judgment where he said: [19] It is the case therefore that I find the decision of the respondent determining the appellant's vocational independence cannot be sustained. There was simply no attempt by the respondent to have the appellant engage in work-types on a progressive basis, as had been recommended by Dr Ruttenberg, and in those circumstances I find that the decision of vocational independence is not appropriate in the case of this appellant's circumstances, particularly her age, and history. [24] Given that it was actually upon this basis that the appeal succeeded, the issue sought to be raised by the applicant is in my view not one arguably in true point and in those circumstances I would dismiss the application. Result [25] Application dismissed, Roderick Joyce Qe District Court Judge