Estate of McGinty v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2011] NZACC 310 UNDER The Accident Compensation Act 2001 IN THE MATTER OF of an application for leave to appeal to the High Court pursuant to section 162 of the Act (AI 230/09) BETWEEN ESTATE OF PATRICK MCGINTY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: (on the papers) Submissions: Ms J Andrew for applicant Mr A D Barnett for respondent Decision: 21 october 2011 DECISION OF JUDGE D A ONGLEY ON LEAVE TO APPEAL TO THE HIGH COURT [1] This is an application for leave to appeal from the decision of His Honour Judge M J Beattie issued on 2 September 2010, McGinty [2010] NZACC 149. The judgment confirmed a review decision awarding lump sum compensation for 44% Whole Person Impairment. [2] The appellant died on 29 September 2007 after suffering asbestosis and other disease conditions. The eventual cause of death was pneumonia. [3] He obtained cover for asbestosis in 2005 and applied in December 2005 for a lump sum payment. An assessment showed that he had other medical conditions including emphysema. A first attempt at assessment of whole person impairment (WPI) was set aside on review and the reviewer directed a further assessment. Mr McGinty was then assessed by Professor Ross Mccormick on 29 June 2007. [4] For this assessment, Dr Mccormick was assisted by the last lung function tests done in February 2007. The February lung function tests might not have reflected the appellant's condition in June when Dr Mccormick did the WPI assessment. Furthermore, Dr Mccormick did not have a report letter written by Dr Kolbe on 2 March 2007. That letter advised that Mr McGinty's diffuse pulmonary fibrosis had progressed and was likely to progress further. Ms Andrew for the appellant submits that it may be inferred that by June 2007 the appellant's condition was worse than in February, and that it was wrong to rely on the February tests alone. [5] The lung function tests used three basic measurements, referred to as FVC, FEV and DCO. The DCO measured gas exchange, which Dr Mccormick accepted was the appropriate measure to rely on in the case of asbestosis and emphysema. He reached a result of 22% based on 49% WPI apportioned between asbestosis and the non-covered condition of emphysema. [6] Mr McGinty died on 20 September 2007. [7] In January 2009, Dr Kolbe wrote advising that, in his opinion, asbestosis was the prominent cause of the pulmonary impairment. Dr Mccormick was asked to consider that letter and did so. He then reviewed his assessment of June 2007, again taking 49% based on the DCO figure, then accepting that asbestosis was the dominant cause, he apportioned 90% to the covered disease and amended the assessment to 44% WPI. [8] Dr Kolbe wrote again to Ms Andrew on 11 March 2009 stating that the appellant already had a severe respiratory impairment when tests were taken on 27 February 2007, and that he was clearly deteriorating. He referred to the extent of deterioration between the February tests and his terminal illness, with reference to another set of tests done on on 29 August 2007. In the letter, he outlined reasons to assume an ongoing deterioration in lung function during 2007 and stated: "Therefore it seems very reasonable to assume that he would have had further fall in DCO between February 2007 and his death. As such, it is likely that his DCO would have fallen below 40% predicted. As such, he would be in Class 4 Impairment (51-100% of the whole person)." [9] Class 4 would have produced a higher level of impairment than the 49% assessed by Dr Mccormick. On this application, Ms Andrew submits that it should be as high as 80%. She submitts that the Judge had wrongly stated that there were no other tests prior to Dr Kolbe's letter in January 2009. [10] Dr Mccormick was asked to comment on Dr Kolbe's letters. He stated that since 2005 there had been fluctuations in the appellant's lung function tests that may well have been partly due to random measurement in a man suffering other serious illnesses. [11] By the time of the review, heard in February and April 2009, the further reports from Dr Mccormick and Dr Kolbe had been introduced, and also a pathologist's postmortem report of the cause of death. The pathologist's report confirmed that there had been extensive deterioration in the lungs of the deceased. Dr Kolbe associated it with diminished DCO. The Reviewer excluded that evidence on the basis that an impairment assessment must be done when the claimant is living, so that the later information would not be taken into account. Judge Beattie did not adopt that view, but decided the point on other grounds. He weighed the evidence of Dr Kolbe's opinion and said this: [32] The final report from Dr Kolbe, being his letter to Counsel on 11 March 2009, is simply him surmising that the DCO would have had a further fall prior to the deceased's death from that which was measured in February 2007. I find that whilst it was open to Dr Kolbe to make such a supposition, it cannot be translated into a factor upon which some new impairment assessment could be made. [33] In the circumstances of this case, I find that as a matter of law, the Respondent carried out an assessment as was required of it and it made a decision which was subsequently modified at review. I find that there is no evidence to suggest that the Reviewer's decision was not in accord with the established facts, which by that time included the considerable lessening of the impact of impairment from emphysema. [34] If it had not been the case that pneumonia overtook the deceased's medical condition, it would have been open for a further assessment to have been carried out at the expiry of twelve months from the date of Dr Mccormick's June 2007 assessment. It would have been at that point, that any deterioration, which may have resulted in an increased impairment, would have been able to be identified and any such increase recognised by way of increased lump sum. [35] As a matter of law however, there has been no further assessment, nor could there be one, and I find as a fact, and as a matter of law, the opinion expressed by Dr Kolbe as to what the deceased's impairment situation may have been in September 2007, cannot affect the validity of the assessment that was made in June 2007. The date and time of Dr Mccormick's assessment was a snapshot in time and there is simply no evidence to establish that as of that snapshot, the criteria upon which he was relying was other than correct and appropriate. [12] Ms Andrew pointed out that in para [30] of the judgment, Judge Beattie stated that Dr Mccormick relied on the lung function tests of February 2007, and that Dr Kolbe did not have any other test results to refer to when he gave his views on the matter. That overlooks the lung function tests taken on 29 August 2007 shortly before the appellant died, although those tests did not appear to include the DCO gas exchange test. Ms Andrew pointed to other evidence that could be taken into account in considering whether there had probably been a significant deterioration by June 2007 [13] Ms Andrew submitted that the line of reasoning in paras [32] to [35] was not in accordance with Martin v ACC [2009] 3 NZLR 701 and Wildbore v ACC (2009) 19 PRNZ 239 (CA); that the District Court is required to come to its own conclusion on its assessment and evaluation of the evidence, and the merits generally. She submitted that the evidence of further deterioration before the assessment in June 2007 should be amended to take that into account. [14] Mr Barnett for the respondent submitted that the evidence did not strongly support a deterioration by the date of the assessment. He submitted that the Judge had rightly observed that an assessment is a "snapshot in time" with a right of reassessment once every 12 months. He submitted that it is the assessment of June 2007 which is relevant. What the situation might have been in September 2007 cannot affect the validity of an assessment at June 2007. He submitted that the assessment was properly carried out and is the only assessment carried out in accordance with the Act. On the evidence there is no alternative or competing assessment in accordance with the Act, rather there is only an opinion that on the balance of probabilities the appellant's impairment falls in the range of 51% to 100%. [15] Ms Andrew submitted that the following questions of law arise: (i) Was the District Court Judge wrong not to take into account all the medical evidence produced to the Court? (ii) Did the District Court Judge confine himself to consideration of factors pertaining to policy and procedure only and disregard the merits? Martin v ACC [2009] 3 NZLR 701, Austin, Nichols & Co.Inc v Stichting Lodestar [2008] 2 NZLR 141 (iii) On the basis of the medical evidence and reports, could he have reached the conclusion that the deceased's Whole Person Impairment was greater than 44% and was 80% or more? If he could not, what conclusion could he have reached on the level of the deceased's Whole Person Impairment? Decision [16] I consider that there is a question of law that is appropriate for consideration by the High Court. [17] An impairment assessment that is done in accordance with a statutory process is a "snapshot in time", but it can be modified in the light of new evidence that relevant circumstances were overlooked. That is why Dr Mccormick modified his assessment in light of Dr Kolbe's opinion that the asbestosis was a dominant or prominent cause of the appellant's DCO test results. His assessment of 22% WPI attributed to the asbestosis was amended to 44%. That adjustment was limited to apportionment, but there may be no difference in principle between amending an assessment as to apportionment or amending it as to total WPI. [18] The applicant submits that it was wrong in law to hold that evidence of deterioration could not affect the validity of the assessment that was made in June 2007. The evidence in question concerned a deterioration between February 2007 and August or September 2007. The appellant claims that the duration of the deterioration, if it is considered, is capable of supporting a probability that the appellant would have had a Class 4 impairment by June 2007. [19] In my view the evidence is capable of supporting such a conclusion, as a question of fact that is open for consideration on the evidence. Whether or not such a finding should be reached on the evidence is not a matter to decide on an application for leave. The first question is whether the Court erred in finding that the evidence could not be "translated into a factor upon which some new impairment assessment could be made" - para [32] of the judgment. That is to say that the assessment could not be modified by taking account of later evidence relevant to the time of the assessment. The second question is whether the additional evidence was capable of showing a probability that the deceased would have had a Class 4 impairment by 29 June 2007. [20] For those reasons, leave is given to appeal to the High Court on the questions of law formulated by the appellant in para [15] above. Leave is reserved in case the questions of law should be differently framed. The question of costs is also reserved. Judge D A Ongley District Court Judge