Pennefather v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HAMILTON [2012] NZACC 385 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN DENNIS PENNEFATHER (ACR 352/11) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at HAMILTON on 26 October 2012 APPEARANCES Mr D Pennefather in person. Mr A D Barnett, Counsel for Respondent. DECISION OF JUDGE M J BEATTIE [1] The primary decision of the respondent, which was at the heart of this appeal, was its decision of 19 January 2011, whereby it declined to fund right knee surgery sought by the appellant on the basis that such surgery was not intended to treat the covered injury, but was to treat a pre-existing medical condition. (2] The appellant sought a review of that decision and a review hearing took place on 4 May 2011 at which the appellant represented himself. At that hearing the Reviewer noted the medical evidence which had formed the basis of the respondent's primary decision, and the evidence given by Mr Cowley, who was the proposed surgeon. [3] In a decision dated 25 May 2011 the Reviewer determined that the evidence of Mr Cowley was not sufficient to overturn the earlier evidence upon which the respondent had acted, and the Reviewer therefore confirmed the respondent's primary decision. 2 [4] On 8 June 2011 the Registry received a Notice of Appeal from that review decision lodged by the appellant, in which the appellant sought an order setting aside the review decision and that a finding in the appellant's favour be made. Attached to that Notice of Appeal were some significant written submissions lodged by the appellant. [5] It is the case that subsequent to the lodging of that Notice of Appeal, but before any date of hearing for that appeal had been allocated, the respondent had obtained a further medical opinion relating to the appellant's request for the funding of the proposed surgical treatment to his right knee, and it is the case that consequent upon that further medical opinion the respondent did, by letter of 14 May 2012, advise the appellant that it now agreed to fund the right knee surgery and it requested that he therefore withdraw the appeal. [6] It seems to be the case that despite there no longer being an issue for consideration in the appeal, the appellant sought to have the Court consider the nature of the review decision and also other issues arising from his covered injury. In effect the appellant wished the Court to note the submissions that he had made when he filed his Notice of Appeal, and make appropriate comments thereon. [7] The situation in this case is that because the respondent has cancelled the decision which was in issue for the appeal and has granted the entitlements sought by the appellant, there is no issue which can be the subject of an appeal and as there is no longer any live issue, that is the end of the appeal. [8] On the basis of there being no live issue remaining I determine that this appeal must be withdrawn and it is accordingly so withdrawn at the direction of the Court. There is no outstanding issue relating to costs as these have also been acknowledged and accepted by the respondent. DATED this 22nd day of November 2012 M J Beattie District Court Judge