Nicholl v Accident Compensation Corporation

IN THE DISTRICT COURT WELLINGTON REGISTRY Decision No. 6 S /2010 Al 334/08 and Al 335/08 BETWEEN B NICHOLL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD ON THE PAPERS DATE OF THIS DECISION 4 May 2010 REPRESENTATION Applicant on his own behalf Mr A D Barnett, Barrister, for ACC DECISION OF JUDGE P F BARBER The Application [1] The applicant applies for leave to appeal Judge Beattie's decisions Nos. 160/2009 and 161/2009. These two decisions were issued on 22 September 2009 and 29 September 2009 respectively. Do I have Jurisdiction? [2] By s.162(2) of the Injury Prevention, Rehabilitation, and Compensation Act 2001" the time limit on bringing an application for leave to appeal is "within 21 days after the District Court's decision". Time runs from the day immediately following the decision, namely, 23 September and 30 September respectively. [3] The application for leave to appeal both decisions is dated 20 October 2009 and received for filing by the Court on 22 October 2009. Accordingly, the applications for leave to appeal are out of time. The respondent does not waive the time limit on filing these applications for leave to appeal. [4] Section 162(5) applies the High Court Rules. By rule 705 of the High Court Rules a period begins "when the decision to which it relates is given" not for example from the date the decision is received by the appellant or the applicant as the case may be. Accordingly, if, as the applicant claims, he did not receive the District Court decisions until 2 October 2009, that does not bear on the time limits. The time for filing the applications for leave ended on 13 October 2009 and 19 October 2009 respectively. [5] The applications are out of time. There is no jurisdiction. It is helpful to refer generally to Siola'a v ACC (CA) 116/2008). 2 [6] As the applications for leave to appeal are out of time and the Corporation does not waive the time limit, this Court has no jurisdiction and the applications accordingly must be dismissed. Is there a Bona Fide Argument? [7] Even if there were jurisdiction to hear these applications, leave to appeal must be refused as no question of law capable of serious and bona fide argument arises. [8] In both appeals the present applicant sought to challenge a decision of the respondent declining cover on a claim that his dermatitis is caused by a lower back pain in turn caused by a covered lumbar sprain injury. That very same claim was the subject of a prior appeal and was dismissed by Judge Beattie in the decision Nicholl v ACC 45/07. Accordingly, in the present appeals Judge Beattie determined that the issue had been finally determined previously and was thus res judicata. It seems to me that decision is plainly right and no arguable question of law arises. [9] The applicant's concern still seems to be to challenge the 30 January 2008 decision of ACC that the applicant is not entitled to cover under the 2001 Act for his skin dermatitis. The applicant's contention has been that this condition was caused by stress arising from chronic lower back pain from a 1996 lumbar sprain injury for which he had cover. However, in his decision of 22 September 2009 (No. 160/2009), Judge Beattie stated as follows: "[3] The issue of whether the appellant's seborrheic dermatitis could be causally linked to the appellant's lumbar sprain injury has been determined by the decision of this Court dated 9 March 2007 under Decision No. 45/07. In that appeal the Court received specialist medical evidence on the issue, including advice from the New Zealand Dermatological Society. [4] In the Court's decision at paragraph [17] that evidence is noted and it is stated as follows: "[17] In the case of the appellant's dermatitis, the scientific evidence is that the cause of Seborrheic dermatitis is wholly unrelated to physical injury such as low back strain, but rather it arises as an inflammatory reaction from the proliferation of a skin inhabitant, namely a yeast called Malassezia. The Court accepts that explanation of causation as provided by the New Zealand Dermatological Society.' The legal question as to whether the aggravation of the appellant's dermatitis by the consequences of a covered injury established the necessary causative link as a matter of law was also considered in that decision. The Court noted the High Court decisions of Fowlie AP 50/00 (Wellington Registry) and Mcdonald AP 2/02 (Christchurch Registry) where it was confirmed that medical conditions or diseases which may be triggered, accelerated or progressed as a consequence of the covered personal injury are not covered, as the essential element of causation is not present. [6] In the decision of Nicholl (45/07) the Court found that the seborrheic dermatitis was not caused by the appellant's stress from his chronic pain syndrome, it was merely exacerbated or aggravated by it. The dermatitis was caused by quite separate and distinct factors totally unrelated to the covered 3 personal injury. The Court therefore held that the dermatitis condition cannot be the subject of cover and consequently cannot be the subject of a claim for treatment costs." [10] Judge Beattie then went on to say that the issue raised in the appeal which became his decision No. 160/2009 is exactly the same as that which was determined . "under Judge Beattie's decision No. 45/07.. . He found that issue to have been finally determined and so be res judicata. That is why he dismissed the appeal in his decision No. 160/2009. [11] Similarly, in his decision No. 161/2009 Judge Beattie stated: [3] The issue in this appeal concerns the respondent's decision to decline to grant cover for the appellant's skin condition of seborrheic dermatitis. [4] The respondent's decision to that affect of 20 May 2008 was in fact the second decision which it had made on the same issue, the earlier decision of the respondent being made on 30 January 2008. (5] As with that earlier decision, this present decision was upheld on review and where again the Reviewer identified the decision of this Court in Nicholl (45/07) where this appellant had first endeavoured to establish entitlements in relation to the skin condition of seborrheic dermatitis. 6] As I have stated in a decision from that earlier review decision to decline cover, being decision No. 160/09, the issue sought to be addressed is one which now must be considered a matter of res judicata. For the reasons given in the decision of Nicholl (45/07) and confirmed in the decision given in Appeal No. A/ 334/08 [i.e. Number 160/2009], there is no basis for this appeal to proceed any further and it is accordingly dismissed." [12] In his handwritten sets of submissions to support the present application for leave to appeal, the applicant simply seeks to relitigate the issue which was decided by Judge Beattie in Nichol/ v ACC 45/07 and which I have referred to above, and he seemed to be repeating similar arguments to those considered by Judge Beattie. Outcome [13] As indicated above, the applications for leave to appeal are out of time. Also, the issue has been finally determined and is res judicata and no arguable question of law seems to me to arise. [14] Accordingly, the present applications are hereby dismissed Judge P F Barber District Court Judge WELLINGTON Al 334-335-08.doc(aw)