Nicholl v Accident Compensation Corporation

IN THE DISTRICT COURT AT ROTORUA [2015] NZACC 269 ACR 155/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN BRIAN NICHOLL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 19 August 2015 Appearances: B Nicholl in person F Becroft for respondent Judgment: 4 September 2015 RESERVED JUDGMENT OF JUDGE A N MACLEAN [1] This is the second of three appeals heard by me on 19 August and to some extent needs to be read in conjunction with my recent judgment in that matter (ACR 524/13). [2] Although this matter relates to funding for a wrist brace for left hand or wrist issues as opposed to ACR 524/13 which was linked with hearing loss issues, there are similar features in that the narrow issue is actually peripheral to a larger substantive issue. [3] As my judgment in ACR 524/13 explains, this appeal to some extent, appears to overlap with a separate matter (ACR 302/13), which is one of a group of four matters referred to in ACR 524/13 that at the time of this hearing, it emerged had been withdrawn but an application to reinstate was with another Judge to be dealt with on the papers. [4] Enquiries made by me suggest that the subject of this present appeal has linkage with ACR 302/13 and ACR 68/15, which as in ACR 524/13 may raise issue estoppel issues (in so far as ACR 302/13 is concerned) but also may in a wider context be a peripheral issue as lying underneath is there is probably a substantive issue of an occupational overuse injury related claim. [5] As with ACR 524/13, further enquiries made after the hearing by me show that the issue of possible carpal tunnel syndrome was canvassed when ACR 302/13 was withdrawn before Judge Ongley. Further details with respect to that are set out in paragraph [13] of my judgment in ACR 524/13. (6] The impression I gain from having listened to the appellant and considered his written submissions, is that he is confused about exactly what his wrist issues are as in his submissions to me at this hearing he seemed to be indicating his belief that the issue is one of left wrist sprain and not of carpal tunnel syndrome, which he says was not his idea but that in some way the respondent had made a mistake and wrongly focused on carpal tunnel syndrome. His review application clearly relates to information he received in August 2012, that a wrist brace he wanted would not be funded by the respondent. [7] The point the respondent makes is that the wrist brace for which funding was sought, had been prescribed to cover carpal tunnel syndrome and the appellant was simply saying that he did not have (and had not applied for) cover for carpal tunnel syndrome and was not declining an application for cover but recording an administrative fact [8] The respondent's position is that the relevant sequence of events is: 26/9/07 claim form submitted "injured left hand through overuse in connection with an accident of 26 July 2007". Respondent letter of 28 September 2007 accepting cover. Letter of 23 December 2009 from the respondent to the appellant's doctor( Dr Fraser) noting his advice of a diagnosis of carpal tunnel syndrome and that it was not an ACC related injury but was being treated through the public health system. A letter of 10 august 2012 from the respondent "it has not been established that the current need for orthotics(wrist brace) is related to your covered injury " Unsuccessful attempts by the respondent to get clarification from Dr Fraser including particularly letters of 23 December 2009 and 2 March 2010 stating "please comment specifically on the following: 1. Is the diagnosis of carpal tunnel syndrome a personal injury caused by work related gradual process if so please specify. 2. What is the injury date for the carpal tunnel diagnosis. 3. What is the mechanism of injury resulting in the diagnosis for carpal tunnel. 4. Please provide supporting medical evidence in relation to your diagnosis of carpal tunnel. 5. Any other comments. [9] In addition there is correspondence involving orthopaedic surgeons Mr Fenton and Dr van Nieuwenhuzen, Dr Fraser, also Mr Petrie, rheumatology consultant canvassing whether or not the appellant did have carpal tunnel syndrome. The Review 10] There have been two reviews both essentially on the same issu. The first review in January 2010(" the first review") dismissed that claim on the narrow point that the key communication under review was the respondent's letter of 23 December 2009 referred to above. Further that that advice was not a decision in terms of's 6(1) of the Act because it was an "administrative action" as explained in Weir v Accident Compensation Corporation and that essentially the review was misconceived because the issue was not whether or not he had cover for a work related gradual process injury which would require much more evidence than was available, but was simply a response to an assertion by the appellant that his claim provided cover for carpal tunnel syndrome and a correction of the record. The review decision was to the effect that the appellant did not have cover for carpal tunnel syndrome . [11] The first review noted the criteria under s 30 of the Act in order to receive cover for a work related gradual process injury and that there had been no enquiry into that. [12] The first reviewer further noted: That the best course forward is for Dr Fraser to lodge a gradual process work claim for carpal tunnel syndrome if he believes that is the most likely cause. And further that the 2007 claim had never been treated as a gradual process injury as there was no employer noted or any opinion or evidence regarding work related causation. [13] So in essence although making a finding on the narrow point that no reviewable decision was in issue, the reviewer did canvass the background possibilities. High Court Wellington, CIV 2003-485, Miller J [14] Mr Nicholl before me, insisted that he does not have carpal tunnel syndrome or left hand sprain but that his claim is for overuse syndrome for his left hand without a specified cause. However that is not the point in this appeal. [15] The reviewer in respect of the present appeal ("the second review") noted there had been the first review and while noting the reference by the appellant to what he was told by Tauranga Orthotics which clearly repeats what the appellant was told in the 10 August 2012 letter from the appellant referred to earlier considered that the import of that was the same as has been decided at the first review that as a matter of fact he did not have cover for carpal tunnel syndrome. So there was new decision just a restatement of an existing situation and that is therefore not a reviewable decision. Analysis and Discussion 16] This matter has come before me in a very muddled and confused way. As best I can make out after listening to Mr Nicholl and considering his written submissions the substantive underlying issue seems to be one of occupational related overuse syndrome but that has never been investigated primarily in the context of the present matters before me because there is simply no evidence that has ever been produced linking whatever the symptoms the appellant has, with specific employment. The first review noted that a claim could be lodged. [17] Also I note, although the appellant has expressed strong criticism of Mr Carlyle his advocate at the time when ACR 302/13 was withdrawn, that the advocate was contemplating the desirability of having Dr Fraser assist with an application for carpal tunnel syndrome in light of an acknowledgement by the respondent that he might have that. [18] The reality is that the path of this appeal is a symptom of the fundamental underlying lack of clarification as to what the appellant's real issues are. [19] It has ended up as an issue about funding for a brace but that is really only part of the more significant underlying issue of whether or not there should be cover and entitlements in the context of potential occupational overuse (as opposed to a degenerative condition). [20] Part of the confusion appears to have been initially created by the discursive wording of the appellant's application for review dated 5 September 2012. The respondent's position is that no reviewable decision is identified in the review application and that the second review appears to refer to an appointment the appellant had at the Orthotics Department at Tauranga Hospital noting the appellants comment in the second review application "at 23/8/12 meeting with Orthotics Tauranga Hospital Laboratory Blair Gardiner told me ACC would not be paying for cost so he gave it to me at cost ..." [21] It is not hard to see why the respondent has been confused as to what the Review application was about, because there was much more in the review application by way of general denegratory comment and irrelevances. [22] On analysis, the applicant's application for review of the second review is linked with the combination of the letter of 10 August to him from the respondent declining to fund a wrist brace and the advice from the hospital as confirmed to the appellant on 23 August nearly a fortnight later which the appellant referred to in his application. [23] Although the respondents primary submission is that the second review should stand because there is no identifiable reviewable decision, simply a restatement of fact, the reality is that the substantive issue is cover and entitlements through carpal tunnel syndrome. I think the appellants position is that is a red herring as he does not assert carpal tunnel syndrome but occupational overuse problems of an unspecified cause. [24] I am aware of a further development because it is in the bundle of documents submitted by the respondent and referred to in paragraph 2.21 of the respondent's written submissions namely a letter of 24 October 2014 which appears to involve acceptance of a carpal tunnel syndrome related claim under the deemed cover provisions of the Act albeit in the context of revoking that deemed cover. The letter notes a formal revocation. [25] By implication that suggests that a separate claim, not encompassed by the present appeal has been lodged. I am unaware of whether that has gone to review but in any event is outside the scope of this appeal. [26] I have considered whether it would be appropriate to refer this matter back to the reviewer but am conscious that would be rather pointless because the real issue before the reviewer was not whether it is a carpal tunnel syndrome issue or hand sprain but whether it is work related. [27] There is no point in speculating further what if any evidence exists or could be elicited by the appellant in relation to the occupational link and artificial to try and somehow expand the scope of the enquiry to incorporate that because the information available on the relevant evidence for this particular reviewer's decision and the appeal there from shows that the respondent, at least in the context of the issues in this appeal never got any response to the specific questions posed in the letter to Dr Fraser of 23 December 2009. Whether or not the problems are carpal tunnel syndrome, wrist sprain or something else the real issue it seems is an occupational overuse one and this appeal does not nor could it, or the second review, begin to go into that. It is a separate substantive issue . [28] Initial enquiries made by me and referred to in ACR 524/13 throw no light on whether there is any other extant claim in respect of overuse syndrome and I have no evidence on what if any response to the revocation of the deemed decision referred to earlier to there has been but it may be that ACR 302/13 has some relevance. Also possibly a matter of ACR 68/15 which is an open appeal awaiting submissions but I have no information on that other than being aware that it is one of 6 other matters awaiting submissions (136/15,68/15,409/14,346/14,272/14 and 636/13). [29] Accordingly, I am satisfied that the review decision was correct and the appeal is dismissed. There is no issue as to costs. Judge A N Maclean District Court Judge ACR 135-13-Nicholl(aw)