Mitchell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT AT PALMERSTON NORTH Decision No. 220 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ALISTAIR DOUGLAS MITCHELL DCA 251/97 Appellant AND ACCIDENT REHABILIATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 8th day of October 1997 APPEARANCES Mr A Rowlett for appellant Mr P McBride for respondent DECISION OF JUDGE M J BEATTIE There are two distinct issues raised in this appeal. The first issue is wholly a question of law and deals with the question of issue estoppel. The second issue is the substantive issue which is a question of fact. 2 I determine the first issue to be whether the decision of the Corporation in its decision letters of 5 March 1997 and 25 June 1997 seeks to revisit a previous decision of a Review Officer on the same subject matter and, if so, has it got authority to do so under section 67A of the Act. The second issue would follow to be determined in the event that it was held that there was no bar to the Corporation's decision so made. In such event the issue is whether the Corporation's decision to decline cover to the appellant was correct. Background Facts In 1990 the appellant was the Manager for Wrightsons in Levin. He had been employed there for 9 years. The appellant began to suffer headaches and nausea and the initial diagnosis was that his symptoms were as a consequence of his exposure to chemicals at work. In October 1990 the appellant lodged a claim for cover with the Corporation. He continued to suffer from various symptoms which affected his ability to work and he received earnings related compensation until August 1993 when in terms of section 73 of the 1992 Act the Corporation determined that the ongoing symptoms suffered by the appellant were not related to organo phosphate poisoning, being the personal injury by accident for which the claim had been accepted. All entitlements including lump sum compensation in terms of section 78 and 79 of the 1982 Act were declined. That decision of the Corporation was sought to be reviewed and for reasons which are not relevant here such review did not take place until 15 August 1995. 3 At the review hearing evidence was given of the circumstances under which the appellant could have been exposed to various organo phosphates in the course of his employment and there were the associated medical reports determining the link between the organo phosphates to which he had been exposed and the symptoms which he was displaying. The Review Officer in her decision stated: "The issue to be considered here is whether the ongoing symptoms suffered by the applicant are due to exposure to chemicals resulting in organo phosphate poisoning for which a claim was accepted. Initially the claim was accepted for symptoms of headaches and nausea as a result of exposure to fumes in the work place. It was expected those symptoms should resolve in a short period of time once there was no further exposure. This has not been the case and additional symptoms have been suffered. The applicant has provided much evidence setting out at length his history of association with various chemicals and their effects on his health, supporting documentation has also been provided. Cases such as this are reliant on the medical evidence and to that end the opinion of Dr Dryson, highly qualified in the area of occupational medicine has been sought. It was submitted at hearing his opinion on file should be disregarded as he had not examined the applicant and it was based on the assumption that there had been no handling of raw organo phosphate. However it was agreed all further evidence should be provided to Dr Dryson seeking his opinion on the known facts and if necessary a consultation should be arranged. In considering the considerable information which has been provided I have reached the conclusion the evidence supports the applicant did handle raw organo phosphates in the course of his employment despite the conflicting information provided by the employer. I believe the applicant has provided 4 relevant information in support of his claim and the information from the employer has not persuaded me that this was not the case. In reaching my final conclusion I have considered all the facts. In particular extensive medical tests are being carried out to eliminate other causes for the ongoing symptoms suffered by the applicant and the opinion of Dr Dryson, based on all the medical information available and my conclusion that raw organo phosphates have been handled by the applicant, then the applicant does suffer from chronic organo phosphate poisoning. Therefore it is my decision the applicant continues to have entitlement to continue to receive benefits under the Act and these should be reinstated from the date they ceased. This includes considering and issuing a decision in respect of lump sum compensation under sections 78 and 79 of the 1982 Act which were also declined. This application for review is therefore favourable." Following that decision the Corporation reinstated weekly compensation and set in train an inquiry to determine the appellant's entitlements to lump sums under sections 78 and 79 of the 1982 Act. The Corporation referred the appellant to Mr J Keir Howard, a Consultant and Specialist in Occupational Medicine. In his initial report to the Corporation, Mr Howard advised that he doubted that Mr Mitchell had ever suffered from Organo Phosphate poisoning. He went on to record his reasons for coming to that opinion. The appellant's file was reassessed by the Assistant Corporate Medical Advisor and as a consequence a letter of 5 March 1997, being the first decision letter, was issued. That letter is as follows: 5 The Assistant Corporate Medical Advisor Dr Bremna and the legal section of ACC have completed their review of Mr Mitchell's continuing entitlement to compensation following Dr Howard's report. The legal advice supported by Dr Bremna is that the Corporation has decided to cease his weekly compensation under section 73 - suspension, cancellation or refusal of compensation and rehabilitation. The Corporation is satisfied that Mr Mitchell has no entitlement because his present incapacity is not organo-phosphate poisoning as initially believed. His incapacity is not attributable to an injury that is covered by the Act. Mr Mitchell's weekly compensation will cease in 21 days from the date of this letter" The appellant filed an application for review of this decision. Prior to that review hearing a further letter dated 28 May 1997 from Dr Howard was received. Mr Howard had been made aware of the medical opinion of Mr Dryson and other material regarding the work place and in a letter of 20 May 1997 he stated: "On the basis of the above information I do not consider that Mr Mitchell has suffered from acute organo phosphate poisoning". It was his opinion that the symptoms displayed by Mr Mitchell related to neuro-psychological functioning, and that his symptoms do not derive from exposure to organo phosphates. In that regard he recorded his disagreement with the conclusions of Dr Dryson. 6 The review hearing was scheduled for 2 July 1997 and on 25 June 1997 the Corporation issued a further decision letter as follows: "I am writing this letter to make it clear that the Corporation's decision of 5 March 1997 declining cover for Mr Mitchell is in fact a new decision issued under section 67A of the 1992 Act." In his review decision the Review Officer firstly, held that the Corporation did have power to use section 67A to revoke a decision of a Review Officer and substitute a new decision. He held that the provisions of section 67A over rode the provisions of section 90(3). On the substantive question when considering the competing medical opinion of Dr Dryson and Dr Howard, the Review Officer preferred that of Dr Howard and upheld the Corporation's decision. The Review Officer stating "the power to cease Mr Mitchell's entitlement has thus been correctly carried by invoking section 67A." Relevant Statutory Provisions Section 67A Revision of decisions - (1) The Corporation may revise any decision made by the Corporation if it appears to the Corporation that the decision has been made in error, whether by reason of mistake or by reason of false or misleading information having been supplied or by reason of fresh evidence or for any other reason; and the Corporation may - (a) Amend the decision or (b) Revoke the decision and substitute a new decision (2) Every amendment to a decision or substitute decision shall constitute a fresh decision of the Corporation for the purposes of this Act. 7 Section 90 - Reviews (3) Except as provided in this part of this Act decisions of persons appointed under subsection 1 of this section shall be binding on all parties to the review. Counsel for the appellant submits that the decision letter of 25 June is the decision the Corporation must rely on as the letter of 5 March purported to rely on the provisions of section 73 of the Act when it sought to revise the decision to accept cover. It is contended that whilst section 73 can apply to cease entitlements on such grounds as "incapacity no longer being due to the original condition", this was not the position with the appellant as his condition remained unchanged. It was necessary therefore to make a decision as to cover and it was that decision which was made under section 67A by their letter of 25 June 1997. Counsel for the appellant submits that section 67A does not provide power to revoke a Review Officer's decision and such decision can only be revoked under section 91 by appeal to the District Court. No appeal was ever lodged against the first Review Officer's decision. Counsel for the respondent submits that in the light of new medical information and opinion it was not only open to the Corporation to revisit the appellant's entitlement to compensation but rather it was mandatory that the Corporation do so. Counsel submits that the issue now for consideration is, whether the appellant's incapacity as at March 1997 was attributable to organo phosphate poisoning within Section 7 of the Act or rather something else falling outside cover under the Act and that this is a different issue than was before the Review Officer in the 1996 decision. Counsel contends that no Review Officer, until 29 July 1997, was called upon to decide whether the appellant's 1997 symptoms are attributable organo phosphate poisoning. 8 Counsel contends there was no res judicata precluding the Corporation or the Review Officer from determining the issue as they did. It was open to the Corporation and the Review Officer to reach a determination on the merits as at 1997. Counsel contends that the provisions of section 73 are mandatory - the Corporation "shall" is a specific obligation to revisit matters and that this over rides the general provisions of the Act such as section 90(3). Counsel relies on the principle of statutory interpretation that the specific overrides the general - generalia specialibus non derogant. The decision of Goodwin v Phillips (1908) 7CLR 1 is cited: "where there is a general provision which if applied in its entirety would neutralise a special provision dealing with the same subject matter the special provision must be read as a proviso to the general provision and the general provision insofar as it is inconsistent with the special provision must be deemed not to apply." Counsel for the respondent also referred to ACC v Lukes (1992) NZAR 419 where the High Court in considering a matter under the 1982 Act, held that the exclusive jurisdiction accorded to the Corporation to reach a conclusive decision was not to be circumvented by the Appeal Authority finding a category of personal injury which was not put before the Corporation or addressed by it. Such a finding was not a reversal or modification of the Review Officer's decision but was the substitution of a completely new conclusion. Finally counsel submitted that for the purposes of section 67A a decision of a Review Officer was a decision "made by the Corporation". In terms of section 90(8) the power of the Review Officer is to "confirm, modify or revoke ... the 9 original decision" the power is not expressed to be to make a new decision. The decision is still that of the Corporation even in its confirmed modified or revoked state. Decision In the course of considering this appeal I have reviewed the entire Corporation file which of course goes back to November 1990 when the appellant lodged a claim for cover for organo phosphate poisoning said to have occurred from chemical inhalation. Initially, the file discloses that the Corporation declined the claim and a review was lodged. In an interim decision on 3 April 1991 Earnings Related Compensation was granted from 16 November 1990. It is clear that this was an interim decision and a wait and see tag was placed on the decision to grant cover. A final decision was made by the Corporation in its letter of 7 July 1993. That decision stating "The Corporation has concluded that your current symptoms are not related to organo phosphate poisoning". It is that decision which was ultimately reviewed on 15 August 1995 and I find that that review decision concluded and determined that the symptoms and the disease which the appellant was displaying was organo phosphate poisoning and that the appellant was entitled to cover, under the 1982 Act insofar as any entitlements which may accrue under that Act as well as the entitlements which the 1992 Act provided on an ongoing basis. The whole thrust of the Corporation's investigations and enquiries down to the date of that Review Officer's decision was endeavouring to determine whether or not the appellant had suffered organo phosphate poisoning stemming from his work environment and whether the symptoms that he was continuing to display were consistent with such a diagnosis. As the Review Officer notes in her decision considerable evidence was produced as 10 to the length of the appellant's history of association with various chemicals and their effects on his health. I also note that prior to delivering her decision the Review Officer sought and obtained further evidence from Dr Dryson specifically to assist her to come to the decision she was required to make. Thus, the medical evidence was "upto date". The circumstances which caused the Corporation to make it March 1997 and June 1997 decisions was the opinion of Dr Howard that the appellant did not have and had never had organo phosphate poisoning. It was that opinion which was the basis for those decisions. I note that the decision letter of 5 March states "His present incapacity is not organo phosphate poisoning as initially believed". I find therefore that this is not a case where the Corporation accepts that the appellant at one stage did have organo phosphate poisoning but that now he suffers from something different, something quite unconnected with the injury for which he received cover initially, but rather that he has never had an incapacity from organo phosphate poisoning as had previously been held to be the case. Thus, I find that the decision letters of 1997 do address the very same issue which had earlier been exhaustively investigated and which had culminated in the Review Officer's decision in August 1995. Certainly no further evidence has been adduced that the appellant's condition has changed and that what he is suffering from now is something new, something different than that which was being addressed by the medical specialists prior to 1996. 11 It is for these reasons therefore that I find that the live issue is very much the same as was before the Review Officer in August 1995. Having determined that I now turn to consider whether section 67A gives the Corporation power to effectively revoke a decision which section 90(3) holds is binding on it. It is to be noted that section 67A comes in Part V of the Act. That part is headed up "Claims for Payment". There are six sections in Part V before a series of miscellaneous provisions. The first section in Part V is section 63 Claims. That section requires a claimant for cover to lodge a claim in a prescribed form. Section 64 covers the responsibilities of the claimant. Section 65 covers acceptance of work injury claims. Section 66 covers the position of claims not actioned may be treated as rejected. Section 67 requires the Corporation to give notice of its decisions to the claimant and then follows section 67A. Included in Part V is section 73 giving the power of suspension, cancellation or refusal of compensation if the Corporation is not satisfied that a person is entitled to continue to receive it. Section 90 is in Part VI headed up Reviews And Appeals. Section 89 states that any claimant who is dissatisfied with a decision of the Corporation in respect of his or her claim or entitlement under this Act may apply to the Corporation for a review of that decision. I note that section 90(3) states "except as provided in this part of this Act decisions of persons appointed under subsection (1) of this section shall be binding on all parties to the review". I take from that provision that unless the decision 12 of the Review Officer is modified or revoked by the decision of a District Court on appeal under section 91 or the decision is in some way altered or revoked by the High Court or the Court of Appeal under the limited rights of appeal to those Courts as is contained in sections 97 and 98 of the Act, there are no other provisions in Part VI for the disturbing of a Review Officer's decision. The Review Officer's decision on review is part of the "appeal" process from the Corporation's original decision. Once a decision comes within Part VI I find that that decision can only be disturbed by reference to other provisions in Part VI. The provision of section 67A in Part V relates only to the "first instance" decision dealing with claims and payments and it is entirely understandable that there should be such a provision which gives the Corporation the flexibility it needs in that regard. I find that the statutory interpretation presumption cited by counsel that the specific over rides the general operates in this case in exactly the opposite way to that which counsel would contend. Were it to be otherwise any decision of a Review Officer which was unfavourable to the Corporation could by an act of capriciousness by the Corporation be nullified by making a decision under section 67A. I find that that cannot be the intention or purpose of section 67A. The Corporation itself has a right of appeal from a Review Officer's decision and it is that route and that route alone which the Corporation can avail itself of if it is unhappy with the Review Officer's decision. I stress that the ruling of law which I have made is only applicable to the situation where, as here, the same issue which has been authoritatively determined by a Review Officer in a review decision under section 90, is 13 again revisited in a contrary way by a subsequent decision of the Corporation. On the basis of the foregoing findings I find that there is nothing in section 67A which would erode the well established principle of issue estoppel namely that "once an issue has been raised and distinctly determined between the parties then as a general rule neither party can be allowed to fight that issue all over again". A statement of Lord Denning MR in Fidelitas Shipping Co Ltd v V/O Exportchleb [1965] 2ALL ER 49, such statement being cited with approval by Tipping J in Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37. Accordingly then, both on the basis of the interpretation of the respective provisions of the Act and the well established principle of issue estoppel, I rule that the Corporation had no power or authority to cancel the cover which the appellant had by virtue of the review decision of 15 August 1995. The appellant is entitled to such ongoing entitlements as the Act may give, based on that decision that the appellant suffers from organo phosphate poisoning, he contracting the same in circumstances which give him cover both under the 1992 Act and the 1982 Act. The decision of the Review Officer of 29 July 1997 and the decisions of the Corporation of 5 March 1997 and 25 June 1997 are hereby revoked. The appellant is entitled to costs and if the parties cannot agree leave is reserved to apply. DATED at AUCKLAND on this - day of November1997 ithe M J Beattie District Court Judge Mitchell.doc(gm)