CW v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2388

CW v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2388 [30 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-915[2023] NZHC 2388BETWEEN CWApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 29 August 2023Appearances: B Hinchcliff for ApplicantF Becroft for RespondentJudgment: 30 August 2023JUDGMENT OF LANG J[application for special leave to appeal pursuant to s 162 of the AccidentCompensation Act 2001]This judgment was delivered by Justice LangOn 30 August 2023 at 11.00 amPursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/counsel:ACC and Employment Law, AucklandMedico Law Ltd, Auckland[1] CW seeks special leave to appeal against a decision delivered by Judge P RSpiller in the District Court at Wellington on 12 December 2022.1 In that decision, theJudge dismissed CW's appeal against a decision of a Reviewer dated 22 February2022. The Reviewer had dismissed an application by CW for review of a decision ofthe Accident Compensation Corporation (the Corporation) dated 10 May 2021declining cover for a mental injury to CW caused by medical treatment.[2] CW requires special leave to appeal because Judge C J McGuire declined togrant CW leave to appeal against Judge Spiller's decision in a decision delivered on27 April 2023.2Background[3] On 14 May 1977, CW slipped down steps and injured her back. On 6 April1980, Dr B R Cross wrote to the Accident Compensation Commission(the Commission) advising that CW had consulted him regarding pain in her neck andlower back. X-rays revealed a normal cervical spine and a congenitally abnormallumbar spine.[4] On 14 August 1980, Dr Orr administered a spinal injection of xylocaine andethamolamide into CW's L5/S1 interspinous/supraspinous ligament to treatcontinuing back pain.[5] CW subsequently lodged several further claims seeking cover under theAccident Compensation Act 2001 (the Act) for back pain allegedly flowing from theinjury caused by the injection administered on 14 August 1980. These are describedin considerable detail in Judge Spiller's decision3 and it is not necessary to repeat themfor present purposes. The Commission, and subsequently the Corporation, haveconsistently declined the claims because they did not accept that the continuingdiscomfort CW was experiencing could be linked to the injection given in 1980.1 CW v Accident Compensation Corporation [2022] NZACC 241.2 CW v Accident Compensation Corporation [2023] NZACC 65.3 CW v Accident Compensation Corporation, above n 1, at [11]–[27].[6] The present proceeding has its genesis in a claim that CW's general practitionerfiled with the Corporation on 9 January 2019. This sought cover for post-traumaticstress disorder (PTSD) allegedly resulting from the injection administered on 14August 1980. As noted, the Corporation declined this claim in a decision issued on 10May 2021. CW filed an application for review of this decision. On 22 February 2022the Reviewer dismissed the review on the basis that there was insufficient evidence toshow that CW's mental injury was caused by the injection. The appeal to the DistrictCourt followed that decision. At the hearings before both the Reviewer andJudge Spiller CW relied on reports she had obtained from a psychiatrist, Dr GilNewburn. CW had declined to allow another psychiatrist instructed by theCorporation to examine her for the purpose of peer reviewing Dr Newburn's report.[7] After receiving Dr Newburn's report the Corporation referred it to Mr JakeDickson, a Psychology Advisor, who completed a file review and advised theCorporation not to accept the claim. Mr Dickson told the Corporation thatDr Newburn's report contained significant oversights and that it was not acomprehensive mental injury report. The Corporation relied on this advice inopposing the review and the appeal to the District Court.Judge Spiller's decision[8] Judge Spiller's reasoning is encapsulated in the following paragraphs of hisdecision:[48] The issue in this case is whether there is sufficient evidence, on abalance of probabilities, that the appellant has suffered mental injury as aresult of a physical injury suffered in treatment (a spinal injection) received inAugust 1980. In terms of section 26(1)(c) of the Act, the appellant mustestablish that she suffered mental injury because of a physical injury. Thismeans that, in principle, she must establish that, but for her physical injury bytreatment of Dr Orr in 1980, she would not have her mental injury of post-traumatic stress disorder (PTSD), and that her physical injury materiallycontributed to her disorder.[49] Mr Hinchcliff, for the appellant, submits as follows. The evidencesupports that the appellant suffers from a mental injury caused or contributedto by treatment in 1980. There is no evidence that she suffered from a mentalinjury before the treatment. The interaction between the sensitive claim andthe mental injury due to treatment has been answered by Dr Newburn. Heassessed that it was more probable than not that the appellant's currentpresentation remained a clear and consistent consequence of the injuring eventin 1980. It is not reasonable for the Corporation to demand that the appellanthave an in-person assessment with a psychiatrist. The Corporation could haverequested an opinion from a specialist on the papers at any time.[50] The Court acknowledges the above submissions. The Court notes alsothe following evidence.(a) The appellant's claim for PTSD was lodged in January 2019,over 38 years after she received a spinal injectionadministered by Dr Orr.(b) On 3 November 2012, Dr Jansen, Consultant Psychiatrist,attended the appellant at her home. Dr Jansen noted that theappellant had a very longstanding belief that she had multipleproblems that she attributed to a pain-relieving injection givenby Dr Orr into her spine in 1980. Dr Orr recorded that it wasestablished that the appellant's belief that she had spina bifidaocculata and that as a result Dr Orr hit the wrong spot, causingall sorts of neural damage, was without foundation. Dr Jansenfound that her spinal cord appeared to be normal, but she hadsome degenerative changes in her body spine. Dr Jansendiagnosed psychosis (not otherwise specified), probablyschizophrenia of long standing, of the nature of delusionaldisorder.(c) On 27 April and 19 June 2016, the appellant presented toassessors at her local District Health Board Mental HealthServices. The assessors noted that she reported a conspiracyin the health system since she had a needle put in her back 37years before by a doctor who caused her significant problems(even though the history was of spina bifida occulta). Theassessors diagnosed a mixed cluster of personality traits,including schitzotypal and delusional disorder.(d) On 6 April 2020, a Reviewer, having conducted a review toconsider the appellant's claim, directed as follows. TheCorporation was to engage an appropriate specialist for thepurpose of assessing whether the appellant's physical injurycaused by Dr Orr's injection materially contributed to apossible diagnosis of PTSD. The Corporation was to ensurethat, at the time of engaging a specialist, all medical relevantreports and other information were made available. Inaddition, a copy of the Reviewer's decision (which includedconsideration of the reports of 2012 and 2016) should beprovided.(e) It appears that the Corporation duly made available therelevant medical reports and other information. TheCorporation also liaised with Mr Hinchcliff, the appellant'sadvocate, about the engagement of an appropriate specialist.On 19 June 2022, Mr Hinchcliff gave permission for theCorporation to access all the appellant's medical informationrelated to her PTSD condition, and provided the names ofthree psychiatrists from whom the assessor was to be chosen.The Corporation objected to a referral to one of the namedpsychiatrists, Dr Newburn, but agreed to the appointment ofanother of the psychiatrists listed. However, the appellantwent ahead and arranged an appointment with Dr Newburn.(f) Dr Newburn's ensuing reports were based primarily on theappellant's self-reported evidence. The reports contained nomention of the mental health reports of 2012 and 2016 (notedabove), which made specific reference to her claims about the1980 injury, and which provided a mental assessment of herat the time.[51] The Court concludes from the above evidence that the appellant hasnot established on a balance of probabilities, through Dr Newburn's report,that her physical injury, caused by Dr Orr's injection, materially contributedto a diagnosis of PTSD. Despite the clear directions of the Reviewer, not allrelevant medical evidence was considered by Dr Newburn in his assessment.The Court does not accept that it is appropriate that the Corporation couldhave directed that further psychiatric assessment be done on the papers. Theappellant's claim, dating back many years, and covering complex mentalissues, needs to be assessed through an examination of the appellant by anappropriate specialist.Conclusion[52] In light of the above considerations, the Court finds that there is notsufficient evidence, on a balance of probabilities, that the appellant hassuffered mental injury as a result of a physical injury suffered in treatment (aspinal injection) received in August 1980. The decision of the Reviewer dated22 February 2022 is therefore upheld.(Footnote omitted)Relevant principles[9] Section 162 of the Act provides as follows:162 Appeal to High Court on question of law(1) A party to an appeal who is dissatisfied with the decision of theDistrict Court as being wrong in law may, with the leave of the DistrictCourt, appeal to the High Court.(2) The leave of the District Court must be sought within 21 days afterthe District Court's decision.(3) If the District Court refuses to grant leave, the High Court may grantspecial leave to appeal.(4) The special leave of the High Court must be sought within 21 daysafter the District Court refused leave.(5) The High Court Rules 2016 and sections 126 to 130 of the DistrictCourt Act 2016, with all necessary modifications, apply to an appealunder this section as if it were an appeal under section 124 of that Act.[10] Fisher J helpfully summarised the principles applicable to an application forspecial leave to appeal in Kenyon v Accident Compensation Corporation.4 In short,the requirement for leave provides a filter through which this Court can ensure that itsresources will only be used to hear appeals on questions of law that have a reasonableprospect of success.5 This principle would be defeated if leave was granted as a matterof course.6 This means the applicant bears the onus of establishing that leave shouldbe granted in the interests of justice. Given that the District Court has already refusedto grant leave the applicant will normally be required to point to some extraordinaryfactor that has not been taken into account.[11] Importantly, the Court must ensure that it only entertains appeals on questionsof law or questions of mixed law and fact. It must take special care to ensure that it isnot being asked to determine appeals on issues that are essentially factual in nature.[12] Mr Hinchcliffe's written submissions filed in support of the application posequestions of law that go well beyond those referred to in the notice of application forleave to appeal. This is not permissible. The notice of application defines thequestions an applicant is seeking to advance on the appeal. Barring amendment, theproposed questions of law set out in the notice must form the basis of the Court'sdecision.The proposed appeal[13] In her notice of application for leave to appeal CW poses the followingquestions of law for this Court to determine if leave to appeal is granted:(a) When is it reasonable under s 55(1)(d) and (e) of the Act for a personto refuse to undergo a medical assessment?(b) How much evidence is required before the Corporation must approvecover? In this case, was enough evidence obtained?4 Kenyon v Accident Compensation Corporation [2001] NZHC 1301.5 At [15].6 O'Loughlin v Healing Industries Ltd [1990] 2 PRNZ 464 (HC).(c) When has the Corporation met the "reasonable grounds" test in s 54 ofthe Act?Question 1: When is it reasonable under s 55(1)(d) and (e) for a person to refuseto undergo a medical assessment?[14] Section 55(1) of the Act provides as follows:55 Responsibilities of claimant to assist in establishment of cover andentitlements(1) A person who lodges a claim under section 48 must, when reasonablyrequired to do so by the Corporation,—(a) give the Corporation a certificate by a registered healthprofessional that deals with the matters, and contains theinformation, that the Corporation requires:(b) give the Corporation any other relevant information that theCorporation requires:(c) authorise the Corporation to obtain medical and other recordsthat are or may be relevant to the claim:(d) undergo a medical assessment by a registered healthprofessional specified by the Corporation, at theCorporation's expense:(e) undergo any other assessment at the Corporation's expense.[15] As will be evident from the wording used in the section, s 55(1) placesobligations on a person who lodges a claim for cover. These are obviously designedto ensure the Corporation can count on the co-operation of the claimant in determiningwhether cover should be granted.[16] As framed, the proposed question is obviously far wider than appropriate forpresent purposes. The Court should be asked to determine a question of law arisingfrom the case before it rather than a question posed in a general or generic way. In thepresent case Mr Hinchcliffe referred to s 55(1) at the end of the written submissionshe presented to the District Court. The Judge then referred to s 55(1)(d) in passingwhen discussing the relevant law. He also summarised Mr Hinchcliffe's argumentunder s 55(1)(d), and appeared to agree with it, in the italicised portion of the followingparagraphs of his decision:[49] Mr Hinchcliff, for the appellant, submits as follows. The evidencesupports that the appellant suffers from a mental injury caused or contributedto by treatment in 1980. There is no evidence that she suffered from a mentalinjury before the treatment. The interaction between the sensitive claim andthe mental injury due to treatment has been answered by Dr Newburn. Heassessed that it was more probable than not that the appellant's currentpresentation remained a clear and consistent consequence of the injuring eventin 1980. It is not reasonable for the Corporation to demand that the appellanthave an in-person assessment with a psychiatrist. The Corporation couldhave requested an opinion from a specialist on the papers at any time.[50] The Court acknowledges the above submissions. (Emphasis added)[17] Importantly, however, the Judge did not base his decision on any aspect ofs 55(1)(d) or (e). Rather, he based it on the sufficiency of Dr Newburn's report for thepurposes of determining whether CW has suffered "personal injury" as that term isdefined in s 26(1)(c) of the Act. The issue of whether it was reasonable for CW todecline to undergo another assessment was therefore obviously viewed by the Judgeas not being relevant to the decision he was required to make. It follows that s 55(1)(d)and (e) were not engaged in the present case and no arguable ground of appeal arisesin relation to them.[18] During the hearing Mr Hinchcliffe explained that the gravamen of CW'scomplaint under this ground relates to the fact that the Corporation effectively took nosteps to obtain further advice after CW declined to be examined by another healthassessor instructed by the Corporation. He points out that it could, for example, havehad Dr Newburn's report peer reviewed by another health assessor on the papers.However, this is effectively what the Corporation did when it referred Dr Newburn'sreport to Mr Dickson for comment.[19] Given the fact that the Judge did not rely on s 55(1) in reaching his decisionthis ground of appeal does not reach the threshold of being arguable.Question 2: How much evidence is required before the Corporation is requiredto provide cover? In this case, was enough evidence obtained?[20] As will be evident, this ground comprises two separate questions. The first isa question of law but, as Mr Hinchcliffe acknowledges, the second is purely a questionof fact. I therefore propose only to consider the first question.[21] The answer to the first question is straightforward when applied to thecircumstances of the present case. As the Judge noted at the beginning of the passageset out above,7 the issue in the present case was whether there was sufficient evidence,on the balance of probabilities, that CW suffered mental injury as a result of anyphysical injury caused by the spinal injection she received on 14 August 1980. Thephrase on the balance of probabilities means "more likely than not". Later in the sameparagraph the Judge extrapolated the test by saying that, in principle, CW was requiredto establish that, but for the injection she received in 1980, she would not have themental injury (PTSD) and that her physical injury materially contributed to herdisorder.[22] The Judge ultimately concluded that CW had failed to establish on the balanceof probabilities that the physical injury caused by the injection in 1980 contributed toa diagnosis of PTSD.8 This meant there was insufficient evidence, on the balance ofprobabilities, to establish that she had suffered mental injury as a result of physicalinjury so as to constitute "personal injury" in terms of s 26(1)(c) of the Act.9[23] Leave to appeal should not be granted under this ground given that the Judge'sapproach, both in terms of enunciating and applying the appropriate test, wasmanifestly correct.Question 3: When has the Corporation met the "reasonable ground" test in s 54of the Act?[24] Section 54 of the Act provides as follows:7 At [8].8 CW v Accident Compensation Corporation, above n 1, at [51].9 At [52].54 Responsibility of Corporation to make reasonable decisions intimely mannerThe Corporation must make every decision on a claim on reasonablegrounds, and in a timely manner, having regard to the requirements ofthis Act, the nature of the decision, and all the circumstances.[25] During the hearing Mr Hinchcliffe advised me that the reference to s 54 in thenotice of application was an error and that he had intended to refer to s 57 of the Act.Section 57 relevantly provides as follows:57 Steps Corporation takes to action complicated claims for cover(1) This section applies to a claim for cover—(a) for mental injury in the circumstances described in section21 or 21B:(b) for personal injury caused by a work-related gradual process,disease, or infection:(c) for personal injury caused by treatment:(d) lodged outside the period stated in section 53.(2) The Corporation must take the following steps as soon as practicable,and no later than 2 months, after the claim is lodged:(a) investigate the claim—(i) at its own expense; and(ii) to the extent reasonably necessary to enable it to takethe following steps in this subsection; and(b) either—(i) make its decision on the claim and give notice of itunder section 64; or(ii) decide that it cannot make its decision on the claim,or any other decision, without additional information,and tell the person of the extension, which must notexceed 2 months, that will be required.[26] Mr Hinchcliffe advised me that he proposed to rely on s 57(2)(a)(ii). I note,however, that s 57(2)(a)(ii) does not contain any reference to "reasonable grounds".Rather, it imposes an obligation on the Corporation to investigate a claim "to the extentreasonably necessary" to enable it to take the steps then referred to in the subsection.If this ground of appeal was to proceed further it would obviously be necessary toamend the proposed question to reflect the wording used in s 57(2)(ii).[27] However, this argument faces an immediate obstacle because Mr Hinchcliffedid not advance any argument based on s 57 before the Reviewer or at the hearing inthe District Court. It is not permissible to raise it for the first time in an appeal to thisCourt. The argument fails as a result.Result[28] The application for leave to appeal is dismissed.Costs[29] The Corporation is the successful party and would ordinarily be entitled tocosts on the application. However, I am not aware whether CW is legally aided. Itherefore reserve leave to counsel to file concise memoranda regarding costs if theycannot reach agreement on that issue._______________________________Lang J