Kaulima v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT AUCKLAND [2018] NZACC 62 ACR 122/14 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT PURSUANT TO SECTION 162 OF THE ACT BETWEEN ANDREW KAULIMA Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers Judgment: 24 April 2018 JUDGMENT OF JUDGE AA SINCLAIR [Leave to Appeal s 162 Accident Compensation Act 2001] [1] This is an application for leave to appeal a judgment of Judge D Henare dated 22 July 2018. The applicant, Mr Andrew Kaulima, applied for leave to appeal on 29 July 2015. Judge L G Powell issued directions for the filing of submissions by minute dated 10 August 2015. No submissions were filed and on 11 July 2017, Judge G M Harrison issued a further minute making an unless order requiring Mr Kaulima to file submissions by 16 August 2017. These submissions were filed and submissions were subsequently filed in opposition by the Accident Compensation Corporation (the Corporation). District Court Judgment [2] Mr Kaulima applied to review a letter from the Corporation dated 16 August 2013. The letter attached a draft individual rehabilitation plan (IRP), and asked Mr Kaulima to either sign and return the IRP or contact the Corporation to discuss it. The reviewer declined the application concluding that it did not meet the requirements of s134 of the Accident Compensation Act 2001 (the Act) because the letter was not a decision made on a claim. The issue for determination in the District Court was whether the letter of 16 August 2013 was a decision capable of review. [3] Judge Henare determined that the letter did not constitute a decision for the purposes of the Act. Her reasoning is detailed as follows: [12] I am dismissing the appeal because the letter of 16 August 2013 is not a decision under s 6 of the Act. Under Clause 9 of Schedule 1 of the Act. The definition of decision may be extended to include IRPs which have been finalised where: . A claimant has agreed to a plan; or . The Corporation advises the claimant that a plan has been finalised. [13] In this case, the Corporation sent a draft IRP to Mr Kaulima for his consideration. Mr Kaulima was invited to either sign the draft IRP or contact the Corporation to discuss it. The letter was still a proposal. In support of this view, I observe the letter of January 2014 invites the appellant to consider whether he wishes to have his FCE programme with Massey Physiotherapy instead of FCE systems. At the foot of the IRP which Mr Kaulima signed in August 2014, he stated that he would like the FRP with "Jackie Piper who holds an ACC contract through Massey Physiotherapy. Jackie Piper is happy to work with other providers as in the past rehabilitation". The very lengthy correspondence over some 18 months shows there was some flexibility provided by the Corporation as to Mr Kaulima's choice of provider. The lengthy correspondence therefore underlines the fact that the IRP was a work in progress. [14] These facts show that Mr Kaulima neither agreed to the IRP nor did the Corporation advise that the plan had been finalised. On this basis, I accept the submission of Ms Becroft that the IRP was never finalised and therefore the application for review lodged by Mr Kaulima was premature. The reviewer was correct to decline jurisdiction on this basis. [4] Judge Henare dismissed the appeal accordingly. Application for leave to appeal Law [5] Section 162(1) of the Act provides that a party to an appeal who is dissatisfied with a decision of a District Court as being wrong in law may, with leave of the District Court, appeal to the High Court. This means that an appeal can only be on a question of law.! That question must be one "capable of bona fide and serious argument".2 [6] Mr Kaulima filed detailed submissions in which he advanced a number of issues principally concerning the conduct of the reviewer and actions of the Corporation. In relation to the District Court decision, the issues raised are: [i] The District Court erred in not giving Mr Kaulima the opportunity to address the chronology filed by the Corporation. Mr Kaulima alleges that there were errors in the chronology and no weight should have been placed on it. [if] The District Court made an incorrect statement that Mr Kaulima was not engaging in the rehabilitation he needed; [ifi] The District Court erred by not considering s 75(1)(ii) of the Act; and [iv] The District Court erred in not directing the Corporation to finalise the IRP. Analysis [7] None of these issues raise any questions of law. The chronology was prepared by the Corporation at the direction of the Court. Mr Kaulima contends that important medical information was omitted from the chronology, and it should not have been relied upon by the Court. Likewise, he submits that Judge Henare made an incorrect 1 Impact Manufacturing Lid v Accident Rehabilitation and Compensation Insurance Corporation Wellington HC AP 266/00 Doogue J.. What amounts to a question of law was considered at [5]-[9]. Ibid at [4]. statement in her judgment as to his engagement in rehabilitation. These issues raise matters of fact. Furthermore, and importantly, it is unclear how either of these issues were or could have been of any relevance to the Court's decision where the sole question for determination was whether the letter was a reviewable decision. 8] Mr Kaulima submits that the Court also failed to consider s 75(1)(ii) of the Act. This section provides that the Corporation must, within 13 weeks after accepting a claim for cover, determine whether a claimant is likely to need social or vocational rehabilitation after the 13 weeks have ended, and if so, prepare an IRP. I note that this appeal arises out of a claim dating from 1995, and where previous IRPs have been prepared so that the considerations under s 75 were of no relevance in the appeal. 9] Finally, Mr Kaulima contended that the Court erred by not directing the Corporation to finalise the IRP. Again, this matter does not raise any question of law. I also note that as the appeal was dismissed, it would not have been appropriate for the Court to have made any such directions. Decision [10] No arguable question of law has been raised and the application for leave to appeal is dismissed accordingly. AA Sinclair District Court Judge