Nicholl v Accident Compensation Corporation

IN THE DISTRICT COURT WELLINGTON REGISTRY Decision No. 53 /2008 Al 036/04 IN THE MATTER of the Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to section 162 of the Act BETWEEN BRIAN WILLIAM NICHOLL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent BY CONSENT HEARD ON THE PAPERS DATE OF THIS RULING ( March 2008 APPEARANCES/COUNSEL The applicant/appellant in person Mr A D Barnett, counsel for respondent DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The Issue and Basic Background [1] The appellant seeks leave to appeal against the 9 March 2007 decision of Judge M J Beattie (No. 046/2007) that on 6 September 2002, ACC correctly declined to reimburse the appellant for certain travel expenses and for the cost of a Hot Springs Pool pass. [2] In August 2002, the appellant had applied to the respondent for the cost of an annual pass to the Taupo Hot Pools and for daily travel cost to and from his home to them, being a combined distance of 28 kilometres. The appellant stated that he needed to visit the hot pools daily for hydrotherapy and to assist him obtain and maintain a degree of mobility in relation to a covered back injury suffered in 1996 which continues to cause him significant pain. 2 [3] ACC oppose the application for leave to appeal on the basis that no question of law arises which is capable of bona fide and serious argument. [4] Under s. 162 of the 2001 Act, a party dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. It is settled law that the contended point of law must be capable of bona fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues of fact to be dressed up as questions of law because appeals on the former are proscribed. However, a mixed question of law in fact is a matter of law and a Judge's treatment of facts can amount to an error of law. Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course. [5] Judge Beattie's reasoning for dismissing the appeal seems to me to be clear and correct. It reads as follows: 'DECISION [12] I propose to deal firstly with the respondent's decision of 6 September 2002 declining reimbursement of transport costs and the Hot Pools pass [13] It is the case that the respondent can only make payment for such matters and in such circumstances as is provided for under the Act or Regulations made pursuant thereto [14] Clause 1 of Schedule 1 to the Act requires that the Corporation is liable to pay the cost of a claimant's treatment if that treatment is of a type normally provided by a treatment provider. Treatment provider is defined in section 6 of the Act as meaning a medical specialist of various types. The definition is limited to persons with a particular medical discipline. [15] The definition of Treatment Provider does not extend to institutions such as the Taupo Hot Springs [16] The particular decision made by the respondent was one where the appellant was seeking reimbursement for expenditure already incurred. In that case it would require that particular expenditure be of a type which was envisaged under the Act as being provided by a Treatment Provider. However, if the appellant had gone about the matter differently and had sought the aid of the Injury Prevention, Rehabilitation and Compensation (Ancillary Services) Regulations 2002, and obtained the prior agreement of the Corporation, then such costs as the appellant has incurred are within the nature of 'ancillary services' which that particular regulation envisages. [17] Those Regulations cannot assist the appellant in the context of this appeal, but if it was part of a type of rehabilitation that was provided in an Individual Rehabilitation Plan, then it would likely be a type of rehabilitation for which payment could be had. (18] The particular way in which the appellant's claim came about is one which cannot be redressed retrospectively. It is the case that as the Taupo Hot Pools cannot be regarded as a Treatment Provider within the Act, there is no statutory 3 right to payment for the Pool Pass or transport to and from same. For these reasons, therefore, the respondent's decision was correct in the particular circumstances. [19] The second issue which relates to the refusal to consider the late application for review is an issue which really stands or falls on which Act is the one which is applicable, namely whether it is the Accident Insurance Act 1998 or the Injury Prevention, Rehabilitation, and Compensation Act 2001. [20] The decision sought to be reviewed was a decision made during the currency of the Accident Insurance Act 1998, and whilst it is the case that the Application for Review was lodged after that Act had been repealed, the provisions of the 2001 Act do not operate retrospectively to apply to decisions made under the Accident Insurance Act 1998. The 2001 Act review provisions can only apply to the decisions made by the respondent after the commencement of that Act on 1 April 2002. [21] This issue has been the subject of a number of decisions of this Court, two of which are Ward (64/04) and Harris (335/03). I apply the principles identified in those decisions which determines that the appellant's rights of review expired three months after the date of the respondent's primary decision of 4 August 2000, with no right to seek an extension of time. No rights of review for appeal still exist in relation to that decision. [22] For the foregoing reasons, therefore, the appeals in relation to both Review decisions are dismissed." Reasons for Ruling [6] The appellant has appealed against the ACC decision declining to meet retrospectively costs which the appellant had incurred for a pass to the hot springs at Taupo and for transport costs to and from the pool. That decision has been upheld both by a Reviewer and by Judge Beattie. [7] The Corporation is liable to meet the costs of treatment provided by a "Treatment Provider". Judge Beattie determined that the hot pools are not a "Treatment Provider" as defined by s.6 of the 2001 Act; nor was there a "Treatment Provider" at the pools. Those seem to me to be decisions of law but could be regarded as findings of mixed fact and law. However, I do not consider those findings capable of bona fide and serious argument in the context of this case. [8] Judge Beattie went on to suggest that such expenses may, in appropriate circumstances, be met by ACC where the service provided is part of an individual rehabilitation programme approved by ACC in the usual way. However in the present case, the use of the pool by the appellant was not part of an IRP so that avenue was not open to him to claim the incurred costs for which he seeks reimbursement. Judge Beattie suggested that does not close the door to future costs of that type being met if the service is included in an IRP. I agree. However, still no question of law arises which is capable of bona fide and serious argument. [9] In his decision, Judge Beattie dealt with a second and separate matter. The appellant appealed an 8 December 2003 review decision whereby the Reviewer found that ACC was not permitted to accept a late application for review. That had been filed by the appellant in respect of a 4 August 2000 decision of ACC which had declined the appellant's request for provision of certain aids and appliances. The application for review of that decision had not been lodged until 10 November 2003. The Reviewer had determined that the second issue must be considered under the Accident Insurance Act 1998 which did not contain any provision allowing for an extension of time for the lodging of an application for review outside the three months specifically provided for in s. 136. Accordingly, he confirmed ACC's decision not to accept the application for review. [10] Judge Beattie dealt with that issue in paragraphs 19 to 22 of his decision and those paragraphs are set out above. He explained his finding that no rights of review for appeal still exist in relation to the said ACC decision of 4 August 2000. [11] There is no provision for the extension of time for the lodging of review applications in respect of primary decisions made under the 1998 Act. That is settled law. In any case, under the appellant/applicant's present application for leave to appeal, the appellant does not seem to be challenging Judge Beattie's decision on that issue [12] The extensive handwritten submissions of the appellant do not seem to me to raise any arguable issues about the clear reasoning of Judge Beattie who, in my respectful view, is correct on the issues in question. [13] I consider that the appellant has not raised any point of law capable of bona fide and serious argument requiring or warranting determination by the High Court. Accordingly, the application for leave to appeal is hereby refused. Judge P F Barber District Court Judge WELLINGTON Ai 036-04.doc(aw) . . .. -.. .