Steel v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2016] NZACC 288 ACR 383/10 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN DEREK STEEL Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers Judgment: 25 October 2016 JUDGMENT OF JUDGE JH WALKER [1] On 29 October 2009 the Accident Compensation Corporation ("the Corporation") declined funding for a hip replacement and suspended Mr Steel's ongoing entitlements for weekly compensation. Mr Steel appealed the Corporation's decision but his appeal was rejected by Judge Powell in a decision issued 24 September 2015.' He has subsequently made an application for leave to appeal to the High Court. [2] For leave to be granted I must be satisfied there is a question of law to be argued and that it reaches a threshold required to justify allowing a further right of appeal to the High Court. Steel v Accident Compensation Corporation [2015] NZACC 281 Background [3] In October 2006 Mr Steel first experienced pain in his upper thigh and groin following a truck accident. [4] Over the next few months the pain spread to his left hip and has centred on his left hip since that time. [5] X-rays were carried out in November 2006, and an MRI arthrogam in January 2007 which reported no issues for Mr Steel's left hip. When he was assessed by Mr Armour, orthopaedic surgeon, in March 2007 he concluded that Mr Steel was in fact suffering from moderate degenerative joint disease. As a result, the Corporation suspended Mr Steel's entitlements on 31 July 2007. [6] Entitlements were subsequently reinstated in December 2007 following two reports from Mr Fosbender, orthopaedic surgeon, who reviewed past and current x-rays and in November 2007 concluded that Mr Steel's left hip was, in fact, "normal radiologically" [7] Mr Steel was assessed by Mr Rietveld, orthopaedic surgeon, who noted that Mr Steel's hip had a marked positive impingement test and that recent x-rays showed a slight lack of head/neck offset but not a lot else on the left side. He found on the right side, some ossification of the labrum and some early arthritic changes. [8] Mr Rietveld's diagnosis stated somewhat incompletely: I think this gentleman's had a probable acute injury to his hip resulting in damaged to the labrum causing impingement of the hip. He possibly has got some chondral damage on the basis of the shape of his hips, however I believe the [gap in the original] ?? symptoms are due to the labral tear that has. [9] The proposal from Mr Rietveld was that it was worth going in arthroscopically and debriding this and cleaning this area up. [10] The surgery proposed was ultimately approved by Dr Alastair Wilson, Corporate Medical Advisor with the Corporation, notwithstanding the incomplete diagnosis. This was based on Mr Fosbender's report of 27 September 2007 and Professor Doyle's scan report of 11 November 2007. Dr Wilson changed his earlier recommendation and stated he considered: (a) the opinion that Mr Steel does not have significant osteoarthritis in his left hip is likely accurate; (b) the labral tear condition is likely a result of the described accident and covered injury; (c) conservative management has not been effective; (d) there is no established osteoarthritis present; and (e) there are no significant anatomical changes contributing femoroacetabular impingement. The criteria in the Hip Arthroscopy Protocol are satisfied. [11] As a result, surgery took place on 24 February 2009. [12] Mr Rietveld provided an operation report of 4 February 2009:: ... the findings showed significant chondral damage on the rim and the acetabulum rim with an associated labral tear from impingement here and there looked like there had been quite a large tear with associated synovitis anteriorly. I therefore took the labrum down unfortunately it was very thin at the front and it tore, therefore I was unable to repair it so I resected it, the used the Burr to remove the bone behind this which was quite prominent ... [13] He also identified there was "obvious impingement" at the "head/neck junction" of the hip joint. [14] The post operation x-rays did not identify any recent abnormalities but a further MRI arthrogram in July 2009 confirmed "Reduced anterior head neck offset with evidence of previous surgical resection" Dr Andrew Gooding, Radiologist, stated in his report: There is moderate chondral loss present which is a full thickness superiorly and laterally over the acetabular surface with full thickness chondral loss present over the anterolateral portion of the femoral head. Associated osteophytes. There is labral ossification with evidence of some cystic change anteriorly. Previous surgery involving the superior and anterior labrum is evident with ill- defined labral margin. The posterior margin of the labral region of resection has a relatively abrupt transition with a slight flap formation. [15] Mr Rietveld confirmed the chondral change revealed by the MRI and sought funding for a hip replacement for Mr Steel. [16] The request for a hip replacement was initially considered by Dr Susan Mcpherson, a Branch Medical Officer. In the Panel Report of 5 August 2009 she states: It seems to me that the changes found at operation, and demonstrated on subsequent MRI arthrogram July 2009, show more significant osteoarthritis than had been demonstrated on pre-op XRs and MRI (the poor quality of that MRI was commented on). [17] Dr Mcpherson sought comment from Dr Wilson who responded on 6 August 2009 as follows: I have read the current ARTP and the operation report from Mr Rietveld concerning Mr Steel's left hip problem and reviewed the previous reports & my comments. I confirm that initial reports from Mr Medlicott, Mr Armour and Mr Rietveld that prior to the hip arthroscopy in February 2009 there was confirmed diagnosis of osteoarthritis of Mr Steel's left hip and evidence that this was not caused by a documented injury to the left hip he sustained 2 years earlier. The debate at the time of the arthroscopy request was the severity of the osteoarthritis, whether the labral tear could have been trauma related and whether the hip arthroscopy was the appropriate procedure compared to a total hip replacement at that time. I gave the benefit of the doubt to Mr Steel and recommended ACC fund the arthroscopy. [18] Dr Wilson refers to the diagnosis and likely cause based on confirmation from the operation of the significant chondral changes, the worn degenerative labrum, obvious impingement and hyperostoses at the head/neck junction. He states the MRI arthrogram has confirmed significant generalised osteoarthritis of the left hip. [19] It was Dr Wilson's opinion that Mr Steel had significant anatomical changes contributing to femoroacetabular impingement over a long period that has resulted in significant osteoarthritis changes. He states: These were likely aggravated but not caused by the hip strain Mr Steel sustained when he twisted while getting into his truck in October 2006. [20] Dr Wilson confirms: The osteoarthritis of the left hip is not post-traumatic and the proposed treatment, a total hip replacement, is not ACC's responsibility. [21] Dr Wilson also recommended further expert opinion from Associate Professor J G Theis if there was an indication Mr Steel disputed the decision to decline. [22] An opinion from Associate Professor Theis was obtained dated 16 October 2009. He considered the x-rays and the MRI hip arthrogram of 11 January 2007 afresh and reached different conclusions. His view was that the initial x-rays showed radiological signs consistent with femoral acetabular impingement (FAI) and that the MRI scan showed labral abnormality which in his opinion was consistent with a degenerative tear secondary to FAI. [23] Associate Professor Theis states in his report of 16 October 2009: In summary, I believe that Mr Steel has pre-existing pathology in the left hips on the basis of longterm femoral acetabular impingement which was revealed by the alleged injuries rather than caused by it. X-rays showed a normal joint space but evidence of femoral acetabular impingement which would explain the labral abnormalities seen on MRI arthrogram and at arthroscopy. This labral abnormality was described as a tear by the radiologist but this does not necessarily mean that this tear is post traumatic in origin. In this case it is very likely that the labral abnormality was on the basis of a degenerative process secondary to longstanding femoral acetabular impingement which is now being recognised as one of the main causes of degenerative hip disease. [24] The Corporation issued its decision on 29 October 2009 declining to fund hip replacement. [25] Mr Steel sought a review but the Corporation's decision was upheld. [26] Prior to the appeal hearing, Mr Steel obtained a further report from Mr Rietveld dated 25 October 2011. This was responded to by Associate Professor Theis on 9 December 2014 who, after stating his earlier conclusions, commented: However repeat x-rays carried out in 2009 and 2010 have not revealed any significant joint space narrowing but only minor radiological signs consistent with early osteoarthritis in the form of mild osteophyte formation. However a CT scan carried out on the 7.7.11 has shown a significant number of subchondral cysts in the anterior aspect of the acetabulum on the left side whereas this was not seen on the right. The joint space was preserved and there was no major osteophyte formation. On the right side there was a lack of head neck offset consistent with chronic impingement but this has been corrected by the arthroscopic surgery on the left side. I note that Mr John Rietveld has come to the conclusion that Mr Steel suffers from osteoarthritis and that he needs a total hip replacement. [27] The appeal hearing took place on 23 April 2015 and further evidence and submissions were completed on 4 June 2015. As noted, Judge Powell issued a reserved judgment on 24 September 2015 dismissing the appeal. Application for Leave [28] This present application was filed on 15 October 2015 pursuant to s 162(2) of the Accident Compensation Act 2001 ("the Act"). Section 162(2) states: 162 Appeal to High Court on question of law (1) A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. (2 ) The leave of the District Court must be sought within 21 days after the District Court's decision. . . . [29] In accordance with directions made prior to the hearing, the applicant filed submissions by email on 25 November 2015 and the Corporation filed submissions in reply on 27 January 2016 (and received 5 February 2016). [30] The applicant emailed submissions in reply on 26 February 2016. Judge Powell's Decision [31] The issue in the appeal was whether the Corporation's decision to decline funding for the hip replacement and suspend Mr Steel's ongoing entitlements was correct. [32] Judge Powell's judgment sets out the factual background of the appeal which includes the evidence from the relevant medical professionals. [33] He refers to the legal principles in respect to the decision of the Corporation to decline funding, the central issue of causation with respect to Mr Steel's issues with his left hip that required hip replacement surgery and in particular whether the requirement for surgery resulted from the covered injury. He states at [21]: This is important because surgery is an entitlement and a claimant like Mr Steel is not entitled to an entitlement other than in respect of a covered injury. [34] Judge Powell also referred to s 117(1) of the Act which provides: 117 Corporation may suspend, cancel, or decline entitlements (1) The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement. [35] Judge Powell states at paragraph [24]: It is well established, pursuant to the decision of Mallon J in Ellwood v Accident Compensation Corporation that before the entitlements of a claimant can be suspended the Corporation must show that it had a sufficient basis on which entitlements should be suspended, with her Honour noting in particular: 2 [2007] NZAR 205 The claimant is not present at the first stage so the obligation must be on ACC at this stage to obtain sufficient evidence ... if there is an insufficient basis then the test of "is not satisfied" is not met. If there is a sufficient basis then ACC can be "not satisfied" of the right to entitlements. As the reviewer and the District Court apply the same test the same approach should be taken at each stage. [36] Judge Powell identifies that this issue is to be determined on the basis of whether, at the time of the Corporation's decision on 9 October 2009, in light of all evidence now available, the Corporation had sufficient basis to be "not satisfied" Mr Steel had a right to continue to receive entitlements". [37] In his judgment, Judge Powell expressed the view that it was entirely understandable that Mr Steel had difficulty accepting that Associate Professor Theis and Dr Wilson's conclusions can be correct when the initial imaging and reports appeared to indicate that there were no degenerative issues within Mr Steel's left hip. [38] Judge Powell referred to the medical evidence and notes that there is no dispute Dr Medlicott, who was the first orthopaedic surgeon to see Mr Steel, noted that Mr Steel's left hip appeared essentially normal although he did not rule out chondral damage. [39] Dr Medlicott referred Mr Steel to Mr Armour in Christchurch who stated as early as 30 March 2007: I am at variance with Professor Doyle in this regard. I think that the articular surfaces show significant chondral damage and that this hip is in fact showing moderate degenerative joint disease. [40] Judge Powell makes the point that any criticism from Mr Steel's counsel does not undermine Mr Armour's conclusion in respect to the first MRI arthrogram, given that it was limited to a view of the left hip only. [41] Judge Powell's analysis of the medical evidence indicates Mr Armour's conclusions are ultimately supported by both Mr Rietveld and Associate Professor Theis and in particular, by the findings of the operation carried out by Mr Rietveld. In that respect also, both of these health professionals in reviewing the original imaging (rather than the reports), noted congenital/anatomical issues with the head/neck offset within Mr Steel's hip joint. [42] Judge Powell states: [29] ... These conclusions were entirely supported by Mr Rietveld's observations when he undertook the operation on 4 February 2001 with the operation notes recording not only "significant chondral damage" but that Mr Steel's left labral tear arose from impingement. It was indeed the strength of those findings arising from the operation that concerned Dr Mcpherson and Dr Wilson and led Dr Wilson to reconsider his earlier conclusions regarding the cause of Mr Steel's left hip problems. [30] Given this position I am satisfied that Associate Professor Theis' comprehensive report, far from being an "outlier" as submitted by Mr Cadenhead, in fact substantively reconciled the imaging and physical evidence available and draw compelling conclusions as to the cause of Mr Steel's ongoing left hip problems which are entirely consistent with the conclusions reached by Mr Armour, Dr MacPherson and Dr Wilson. [43] Judge Powell then goes on to reconcile the medical views and states: [31] The conclusions reached by Associate Professor Theis are also in no way undermined by either the conclusions drawn by Mr Fosbender in his 23 November 2007 report in which he reviewed the second set of x-rays and concluded Mr Steel's left hip was normal radiologically. At that time Mr Fosbender did not have the benefit of Mr Rietveld's operation notes which confirmed the head/neck offset issue and although Mr Fosbender subsequently continued treating Mr Steel and provided three further reports after the Corporation's decision of 29 October 2009, he expressed no further view on causation and did not in any way challenge the conclusions drawn by either Associate Professor Theis or Dr Wilson. [44] Judge Powell also critically looks at Mr Rietveld's position and states that in his final report he does not comprehensively review the available evidence and focuses only on the 2009 x-ray and MRI arthrograms and did not express disagreement with Associate Professor Theis' conclusions let alone engage with any of the issues raised in his report. Judge Powell continues in para [31]: ... More importantly, having noted the congenital/anatomical issues in his original ARTP and then confirmed the existence of those issues in the course of the operation, Mr Rietveld then provided no further analysis of those issues in any of his later reports, and in particular, how those matters related to the cause of Mr Steel's left hip pain. [45] He concludes: [32] Finally Associate Professor Theis' report of 9 December 2014 and the reference to the 7 July 2011 CT scan simply add further weight to the conclusions already reached by Associate Professor Theis that Mr Steel's hip issues are indeed the product of a long term degenerative process. [Footnote from Judge Powell's decision] [46] On the basis of this analysis, Judge Powell concludes that it was correct that Mr Steel's left hip issues were not the result of any covered injury but rather the result of "longstanding femoro-acetabular impingement which has led to early degenerative disease". He also concludes that the Corporation were correct to decline funding for the proposed replacement surgery and had sufficient basis not to be satisfied that Mr Steel was entitled to ongoing entitlement, both at the time of the decision on 29 October 2009 and on the basis of the existing evidence now before the Court. Legal Principles Applied to Application for Leave to Appeal [47] The application for special leave is sought under s 162(2) of the Act. The criteria to be applied before an application is granted is discussed by Fisher J in Kenyon v Accident Compensation Corporation. These principles stated are: [a] The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1 NZLR 708 (CA) I note for completeness that at the hearing and in discussion with counsel it was difficult to entirely reconcile what imaging the different specialists were relying upon. I therefore gave leave for both counsel to undertake further investigations which were duly completed. Controversy then erupted as between couns el as to whether the Corporation oration was trying to adduce further evidence with particular regard to the CT scan of 7 July 2011. Having now had the chance to go through the reports in detail it is clear that all available imaging had in fact already been considered including the 7 July 2011 CT scan which was the subject of discussion and analysis in Associate Professor Theis' 9 December 2014 report. 4 [2002] NZAR 385 at paragraph [15] [b] Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principal at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle; Manawatu Co-op Dairy Company Limited v Lawry [1988] DCR 509; ; Brown v Chowmein Fashions Limited (1993) 7 PRNZ 43 [c] The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O'Loughlin v Healing Industries Limited (1990) PRNZ 464 [d] It is for the Applicant to show that leave is required in the interests of justice: Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA) [48] These principles have also been referred to in the submissions of Counsel for the Corporation (paragraph [9]) where he refers to the decision of Judge Hole in Hutchen v ACC.5 [49] Counsel summarises these as follows: 1. Leave only rises on a point of law; 2. Application of a statutory test properly stated is a question of fact; 3 The issue of law must arise squarely from the challenged decision and must actually arise in the proceeding (as opposed to being hypothetical or abstract); 4 . The point of law must be capable of bona fide and serious argument; 5. Care must be taken to avoid allowing questions of fact to be dressed up as a question of law; and 6. Even if the threshold test is satisfied, there also needs to be good reasons to exercise the discretion in an applicant's favour, taking account of the nature of an appeal, and public interest including the proper use of scarce judicial resources. Leave is not to be granted as a matter of course. 5 [2005] NZACC 274 (13 September 2005) [50] As stated in the recent judgment of Gilmore, " Justice Dunningham stated: [28] ... Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law. However, issues of fact should not be dressed up as questions of law. That said, a mixed question of law and fact is a matter of law. [29] However, even if a question of law is identified, the Court has a discretion as to whether leave should be granted, and leave is not granted as a matter of course. [51] In respect to s 162, it is clear that an appeal is only allowed on a question of law. A question of law does not arise where the Court has merely applied law, which it has correctly understood, to the facts of an individual case. Provided that the Court has not overlooked any relevant matter or not taken into account some matter which is irrelevant to the proper application of law, the conclusion is the matter for the fact finding Court unless clearly unsupported.' The Applicant's Case [52] It is conceded that the applicant has had some difficulty in identifying what he believed may be considered to be points of law. His submissions in reply almost exclusively relate to facts and transverse the evidence. [53] He states in his submissions: I really don't know what "points" of law are and the difference of me rearguing my case. So forgive please if there is "cross over". Let me say there are number of problems I have with Judge Powells Judgement and a number of mistakes but it looks like I can't rectify them or question anything. [54] Issues that Mr Steel refer to are: [i] "My medical records were illegally used and admitted by the Judge and we were given no right of reply/response." Gilmore v Accident Compensation Corporation [2016] NZHC 1594 Bryson v Three Foot Six Lid [2005] NZSC 34; [2005] 3 NZLR 721 at [25] [ii] He objects to Judge Powell at paragraph [31] stating "At the time Mr Fosbender did not have the benefit of Mr Rietvelds operation notes." [iii] He questions why Judge Powell asked if there was further imaging in reference to footnote 7 (see para [46] above). [iv] In respect to the x-ray of 7 November 2007 Mr Steel states that these are x-rays he paid for himself and he does not know how Professor Theis had access to these and it is a breach of privacy. His view is that access to all his medical imaging/files ended with the cancellation of his entitlements at the end of October 2009. [v] That Judge Powell referred to the reports of Mr Rietveld's notes and to Professor Theis' report but paid no attention to Mr Fosbender's two reports of 2007 after which the ACC gave funding for the arthroscopic surgery. [vi] That Judge Powell's findings were made up of 98% of the Corporation's submissions and he was of the view it should be closer to 50/50. [vii] He wanted his day in Court but his lawyer informed him that the Judge would not ask him anything and his submissions were all in. Position of the Respondent [55] The Corporation filed lengthy written submissions. The essential position in response, as set out in paragraph [20] of those submissions, is the Corporation's view that the applicant's submissions are in reality not ones that arise from the District Court judgment and they relate to complaints that are questions of fact rather than law and are therefore outside the ambit of s 162 of the Act. [56] It is the Corporation's position that these allegations are without foundation and that, as seen in footnote 7 of Judge Powell's judgment both counsel were given opportunity to undertake further investigation and make appropriate submissions in response. [57] The Corporation submits at para 22: There was therefore no ambiguity and regardless, no attempt was made formally or otherwise) to reply to the evidence which was submitted by the respondent. [58] In respect to the weight given to the evidence, Counsel goes on to state: 23 The applicant takes issue with His Honour Judge Powell's statement at paragraph 31 of the District Court judgment with respect to the conclusions drawn by Mr Fosbender in his 22 November 2007 report and considers that Mr Fosbender would not have had the benefit of Mr Rietveld's written notes which confirmed the head/neck offset issue (refer paragraph 13.2 of these submissions). The applicant further stated that Mr Fosbender would not have had Mr Rietveld's operation notes because the operation did not take place until some 15 months later. 24 With respect, counsel submits that the applicant may be mistaken. Further on in paragraph 31, Judge Powell states that Mr Fosbender did not have the benefit of the operation notes which confirmed the head neck offset issue. 25 In relation to the applicant's concern about the conclusions drawn by Mr Fosbender, counsel submits that Mr Fosbender is appropriately qualified to review sets of x-rays (whether that be initial or subsequent imaging). It is therefore submitted that this is a clear example of the applicant attempting to re- litigate the case already decided by His Honour Judge Powell; the issues raised in this submission are of fact and not of law. Failure to give Weight to Mr Fosbender's Report [59] Counsel refers to Mr Steel's submission that Judge Powell referred to Associate Professor Theis' report and Dr Rietveld's notes but gave no weight to Mr Fosbender's reports of September and November 2007. [26] ... First, counsel submits that it is open to His Honour to decide which evidence he gives weight to and relies upon and why. Secondly, it is submitted that the applicant's submission is without foundation. Counsel refers to paragraph 4 and paragraph 31 (among others) of the District Court judgment. Lastly, it seems unusual that the applicant has expressed concern about His Honour's reliance upon a report that he himself sought/requested in the first place. Further Investigation Directed by Judge Powell [60] In response, counsel for the Corporation states: [27] The applicant has raised issues with His Honour's Judge Powell's statements made in footnote 7 of the District Court judgment and in particular why His Honour enquired as to whether there was further imaging. Specifically, the applicant expresses concern that his privacy was breached when Associate Professor Theis viewed his x-rays (counsel assumes he is referring to the CT scan of 7 July 2011 referred to in the footnote 7 of the District Court judgment) ... [61] This, counsel submits, is a question of fact and not a question of law that is open to His Honour to rely on the evidence of Associate Professor Theis, including any medical information commented on by same. [62] Counsel refer to s 156 of the Act which provides that the Court may hear any evidence it thinks fit whether or not the evidence would otherwise be admissible in a Court of law. [63] In respect to the applicant's submissions that Judge Powell's findings were more or less exclusively 98% of the Corporation's submissions, Counsel for the Corporation submit: [30] First and foremost, it is submitted that Judge Powell wrote his own judgment and it is in his discretion as to what (or whom) he relies upon to do the same. Secondly, it is submitted that a simple comparison between the respondent's submissions and Judge Powell's judgment will show that the applicant's submission is without foundation. Thirdly, it is submitted that the applicant has not in this case raised a question of law capable of bona fide argument. [64] Counsel for the Corporation refers to the fact that Mr Steel said that his previous counsel advised him not to attend Court. Counsel for the Corporation states: 32 While counsel has sympathy with this submission, it is not ultimately a serious arguable or bona fide arguable error of law arising. Nor, is it in reality a question of fact ... In Response [65] As indicated, Mr Steel has filed some lengthy submissions in response. However, there is little from these that relate to the issue of leave. There does appear to be some misunderstanding on the part of Mr Steel in that he has referred to page 2 of the submission of the Corporation which refer to paragraphs [28] to [33] of Judge Powell's decision and to his findings of fact. [66] It would seem that Mr Steel is attributing these statements to the Corporation's counsel and perhaps does not recognise they are part of the Judge's decision. The rest of his submission appears to be relitigating of a number of the medical reports. Conclusion 67] Counsel for the Corporation also provided some general submissions. It is submitted at paragraph [11] of his submissions that no question of law is capable of bona fide argument and he states: 34.1 No bona fide or arguable issue of law arises about the Court's marshalling of and findings of the evidence; 34.2 The District Court judgment was substantially, if not entirely, one of fact on a proper approach to the issues before His Honour Judge Powell; 34.3 To the extent that it even arose, the Court made findings on the evidence exceeding the advocated standard of proof; and 34.4 In the exercise of the Court's discretion, even if some issue could be seen as arising, this is not a proper case for the grant of leave. [68] While Judge Powell acknowledged the difficulty for the applicant in accepting that there appears to be some inconsistency in the Corporation initially providing surgery and entitlements and then declining further surgery and suspending ongoing entitlements, this does not amount to any error in law. [69] Essentially, the application is an attempt to revisit questions of fact and procedural criticisms. [70] I accept the submission of Counsel for the Corporation that no bona fide or arguable issue of law arises from the application. [71] Accordingly the application for leave is dismissed. [72] There is no issue to costs. Judge J H Walker District Court Judge ACR 383-10-Steel