Nicholl v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 2 19 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BRIAN WILLIAM NICHOLL Appellant (Appeal No. DCA 247/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge A W Middleton, issued on 4 December 1998, under No. 258/98. The issue in that appeal was whether the appellant had a continuing entitlement to an Independence Allowance. The evidence before the Court was that the appellant had been reassessed for an Independence Allowance pursuant to the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment and Rates of Payment) Regulations 1997 as having a whole person impairment of 7%. That assessment was in contrast to an assessment which had been made in 2 1996 under the earlier regime of the Functional Limitation Profile Questionnaire when his permanent disability had been assessed at 100%. Naturally in submissions the appellant had expressed his astonishment that his permanent disability had been reduced from 100% to 7%. His Honour considered the assessment which had been made under the new regime of the American Medical Association Guide to the Evaluation of Permanent Impairment (4th Edition), which had supplanted the earlier criteria of the Functional Limitation Profile and found as a fact that the assessment had been carried out in accordance with those Guides and that in the circumstances, there being no evidence to suggest that that assessment had not been carried out in a proper fashion, the finding of a 7% whole person impairment must be accepted. The finding and the decision of His Honour is wholly a finding of fact and the appellant has certainly not advanced any question of law, germane to the issue, which is in issue. The provisions of s.97 of the Act require that leave be given only where the decision appealed from is alleged to be erroneous in point of law. In the present appeal there is no question of law in issue and in those circumstances leave to appeal to the High Court is refused. DATED at Wellington this 6th day of August 1999 M J Beattie District Court Judge DCA247-98.doc(J9)