C T v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON Decision No. [2014] NZACC. 2 73 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN CT (ACR 563/12) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers Court: Judge JA Smith, sitting alone in Chambers at Auckland Submissions: Mr M Bagnall for the applicant Mr PA McBride for the respondent Date: 21 October 2014 DECISION ON APPLICATION FOR LEAVE BY JUDGE J A SMITH A. Leave is granted to appeal the following question of law: Name Suppression is based on a sensitive claim 2 1. Do the principles established in Wildbore v ACC' apply to appeals in relation to impairment assessments? In addition, I provisionally grant leave in relation to a second question, subject to approving the final wording. Suggested wording is: 2. Is the Court entitled to rely on a competing medical assessment to examine whether there is a flaw or error in the decision of the Corporation? The parties are to advise, by either joint or separate Memoranda, their wording preference on the second issue within five working days of the date of this decision. B. Costs are reserved pending the eventual outcome of the outstanding appeal. REASONS FOR DECISION Introduction [1] By decision [2013] NZACC 196, Judge Spiller dismissed an appeal by the applicant in relation to a decision of the Corporation declining to award the applicant an independence allowance. [2] The questions of law posited for the applicant are: (a) Do the general appeal principles established in Wildbore apply to appeals in relation to an impairment assessment? (b) If the answer to the first question is yes, did the District Court afford undue weight to the opinion of the impairment assessor in holding that the only way to challenge an impairment assessment is to show the original [2009] NZCA 34 3 assessment was wrong or flawed, and that a difference of opinion is not enough? Applications for leave to appeal [3] The law on the grant and withholding of leave to appeal in the ACC context was usefully compiled and restated by His Honour Judge Hole in Hutchen v ACC: Application for leave to appeal 4. The grant of leave requires that the intended appellant show a tenable case that "the decision of the District Court as being wrong in law", 5. Over the years, the Courts have given some guidance as to what constitutes a point of law: 5.1 The issue must arise squarely from "the decision" challenged: eg Jackson v ACC unreported, HC Auckland, Priestley J, 14 February P 404-96-01; Kenyon v ACC unreported, Fisher J, HC Auckland, 19 December 2001. Leave cannot for instance properly be granted in respect of obiter comment in a judgment: Albert v ARCIC unreported, France J, HC Wellington, AP 287/01, 15 October 2002. 5.2 The contended point of law must be "capable of bona fide and serious argument" to qualify for the grant of leave: eg Impact Manufacturing unreported, Doogue J, HC Wellington, AP 266/00, 6 July 2001; 5.3 Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed: eg Northland Co-Operative Dairy Co Lid v Rapana [1999] 1 ERNZ 361, 363 (CA); and 5.4 Where an appeal is limited to questions of law, a mixed question of law and fact is a matter of law: CIR v Walker [1963] NZLR 339, 354. 5.5 It is well settled that a decision-maker's treatment of facts can amount o an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the decision: Edwards v Bairstow [1995] 3 All ER 48, 57. 5.6 Whether or not a statutory provision has been properly constructed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA); Edwards & Bairstow [1995] 3 All ER 48, 57. 5.7 Even if the qualifying criteria are made out, the Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources. Leave is not to be granted as a matter of course. One factor in the grant of leave is the wider importance of any t of law: eg Jackson and Kenyon above. 5.8 Recently, the Supreme Court when quashing a decision of the Court of Appeal that it had jurisdiction to entertain a matter as an appeal on law stated in Bryson v Three Foot Six Limited [2005] NZSC 34: [21] ... The task which the Lower Court is engaged upon is the application of law to the facts before it in the individual case. It [2005] NZACC 274 4 involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer. Where a decision either way is fairly open, depending view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision maker misdirects itself in law... [25] An appeal cannot, however, be said to be on a question of law where the fact finding Court has merely applied law which it has correctly understood to the facts of an individual case. it is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding Court, unless it is clearly unsupportable. [40] ... Whether or not Judges in an appellate Court might, if sitting in the Employment Court, have reached a different conclusion, as the majority in the Court of Appeal certainly would have done, it cannot be said that Judge Shaw has made a decision which is inconsistent with the evidence or contradictory of it or one which can properly be described as "insupportable". The District Court decision [4] The Court discussed the relevant law at paragraphs [21] to [23] of the decision, and the portion of the Court's decision appears to be at paragraph [29], which reads as follows: [29] It is well established that the assessment of whole person impairment by duly appointed specialists is to be accepted by the Court in the absence of clear and cogent evidence to the contrary (cf paragraphs [21]-[22]). Thus difference of opinion alone is insufficient to set aside an assessment without that assessment being shown to be flawed or wrong. The Appellant has not produced clear and cogent evidence to demonstrate that her whole person impairment assessment with apportionment is flawed or wrong. [5] In paragraph [8] the background of the decision is set out: : Dr Fenwick recommended an overall WPA for mental injury of 40% [whole person impairment] WPI, with recommended apportionment of the overall WPI percentage into non-injury, non-ACC mental and behavioural impairment percentage of 40% WPI, and into mental-injury impairment percentage that is covered by ACC under the sensitive issue mental injury claim of 0% WPI. [6] Essentially, the reasoning for that decision is based upon a general statement by Dr Fenwick, a medical practitioner and the appointed assessor. The core of the statement is: . there is no diagnosis of Post Traumatic Stress Disorder as current mental impairment is attributable to the alcohol and substance dependency, the Borderline Personality Disorder and the downstream effects of both these 5 conditions, all of which are entirely able to account for current mental impairment without a history of sexual abuse... Apportionment is required for these non-covered factors. Discussion [7] The legal position as stated by the Court has been supported in other decisions such as Wv ACC' and Parkinson v ACC." However, in other decisions such as Fowler v ACC and Rawiri v ACC" the Court has been prepared to examine the decision and medical evidence to determine whether the assessment is proper and correct. The question raised in this leave application is whether the Court of Appeal decision in Wildbore v ACC has established a correct approach to appeals of this nature. It is noted by the applicant that determination of vocational independence in Wildbore was accepted as not being a discretionary decision. The issue is whether or not a whole person impairment WPI is subject to the same approach because they are not a discretionary decision. [8] I accept that the applicability of Wildbore to WPI assessments has not been resolved at appellate court level. [9] Moreover there appears to be a real question as to whether or not there is a flaw or error in the assessment in apportioning all of the impairment as non-injury, non- ACC mental and behavioural impairment percentage. The applicant makes the point, and it appears to me arguable, that there is an error of law in a failure to consider the correctness of that assessment, and in particular the discounting of the significant whole person impairment on the basis of general background non-ACC matters. [10] Given the absence of any specific detail relating to those matters, it seems to me that this is arguably an error of law. I note the District Court has been prepared to examine the correctness of WPI and criticised generalised discounting for background facts without clear evidence. However, as posited, the second question [2004] NZACC 284 [2007 NZACC 32, at [12]-[14]. 0051 NZACC 367 [2013] NZACC 320 [2009] NZCA 34 6 does not seem to cover this issue. I would have framed the question slightly differently, such as: Is the Court entitled to rely upon a competing medical assessment or its own evaluation to examine whether or not there is an error or flaw in the WPI assessment? Conclusion [11] I am concerned that a considerable injustice could be done if I do not allow leave to appeal. It does seem counter-intuitive that a person who has suffered the type of injuries identified in this case would have no impairment whatsoever (or relying on Dr Reeves' 8% impairment). However it is not for me to substitute my own views for those of the deciding Judge. It does appear, however, that there is a matter of some legal importance to be resolved here relating to the way in which whole person impairment assessments are examined and disputed. [12] I am aware that the Court has more recently made a series of decisions that have disallowed discounts for non-ACC matters where there is no substantive evidence to support the contention. Outcome [13] I grant leave in respect of the first question: Do the general principles established in Wildbore apply to appeals in relation to impairment assessments?. [14] I have posited a possible second question, but wish to give the parties an opportunity to respond to that: Is the Court entitled to rely upon a competing medical assessment and/or its own evaluation to examine whether or not there is a flaw or omission In the WPI assessment? [15] The applicant is to respond within five working days, the Corporation within a further five working days. [16] I accept that there is a bona fide and serious question to be heard here. There is potential for significant injustice if certain parties have no apportionment in respect 7 of an ACC whole person impairment while others suffering the same injuries have the entire impairment allocated to non-ACC matters. Social background [17] Many would see the outcomes discounted for in this patient (dysfunctional family, alcohol and drug abuse) as typical of those who have suffered serious abuse. I conclude that the issue needs clarification and I acknowledge that the Corporation has subsequently changed its approach to assessments, excluding non-specific, non- injury apportionment. Directions [18] I direct that each party is to advise, by either joint or separate Memoranda, their wording preference on the second issue within five working days of the date of this decision. Judge J A/Smith District Court Judge