Estate of T Henry v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2015] NZACC 331 ACR 362/12 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 ESTATE OF T HENRY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Appearances: Ms C Hollingsworth for the Appellant Mr J Roberts for the Respondent Judgment: 4 November 2015 JUDGMENT OF JUDGE D J SHARP Introduction [1] This is an application for leave to appeal a judgment of Judge Spiller delivered 21 June 2013. Judgment appealed 2] In the appeal before him Judge Spiller was required to determine whether or not the letter from the Accident Compensation Corporation ("ACC") dated 12 October 2012 declining the Estate of T Henry's application for a treatment injury constituted a decision and whether declining to order reporting of the incident leading to Mr Henry's death under s 284 of the Accident Compensation Act 2001 was in breach of the obligations of ACC. [3] The appeal was dismissed following findings made that: [i] The letter of ACC dated 12 October 2011 was not a reviewable decision. [ii] That the letter was a response to an application which was, in substance, not a claim for further entitlements but a request for ACC to launch an investigation into the circumstances surrounding Mr Henry's death. [ifi] That the obligation under s 284(2) of the Act is imposed only in relation to information collected by ACC "in the course of processing claims" and that as a matter of fact this claim had already been processed and full cover granted before the request was made on behalf of the estate for further investigation, without an expectation of further entitlements. Facts [4] On 20 March 2008 Mr Henry died due to self inflicted injury. [5] On 17 April 2008 a claim was lodged with ACC on behalf of Mr Henry. On 18 April 2008, ACC wrote to the representative of Mr Henry's estate confirming that full cover had been accepted by ACC. [6] In April 2009, the New Zealand Centre for Adverse Reactions Monitoring reported that Mr Henry had taken Fluoxetine, alcohol and benzylpiperazine. The interactions of the medication and alcohol/drugs was probable cause of his death. 7] On 12 October 2011 after contact from the Estate's representative expressing concern at the impact of Fluoxetine, ACC confirmed cover had been accepted but that further assessment of the circumstances to consider treatment injury criteria would not be undertaken. The Estate's representative was referred to the Health and Disability Commissioner as an avenue to pursue given the concerns with the drug Fluoxetine which had been identified as a probable contributor to Mr Henry's suicide. The Appellant's Case [8] The appellant has filed submissions dated 11 June 2014. This was followed by submissions in opposition from the respondent. On the 17" June 2015 the appellant filed a memorandum seeking a further two weeks to file submissions in reply. [9] On 19 June 2015 his Honour Powell issued a direction that the applicant was to have until 3 July 2015 to file any submissions in reply. After that date the appellant was given notice that the application would be dealt with on the material that was before the Court. [10] No submissions in response to the respondent's submissions have been received and the matter is now dealt with on the basis of the submissions filed. The Accident Compensation Act [11] Under s 162 of the Act an ability to appeal to the High Court with leave of the District Court is provided. Granting of leave is a discretionary matter. [12] The appeal must identify a point of law capable of bona fide and serious legal argument. The appellant submits that His Honour Judge Spiller erred in the following respects: [a] finding that only one decision on cover at one time can be made and; [b] the respondent did not have reporting obligations under s 284 of the Act. [13] The submission is made that the following questions of law can be identified: ' P & O Services (NZ) Lid v Accident Rehabilitation & Compensation Insurance Corporation HC Wellington AP 43/98, 30July 1998. Impact Manufacturing Limited v Accident Rehabilitation & Compensation Insurance Corporation HC Wellington AP 266/00, 6 July 2001. [a] Whether the letter of 12 October 2011 is a reviewable decision? [b] Can a claimant have concurrent cover for personal injury caused by accident and personal injury that is a treatment injury? [c] Is the respondent required to investigate the treatment injury claim in this case to fulfil its reporting obligations under s 284 of the Act? [14] The respondent relies on Haewea v ACC for the proposition that the meaning depends on the circumstances "to make a decision is to make up ones mind, to make a judgment, to come to a conclusion or resolution". [15] The appellant further relies on the letter of 12 October 2011 as being a decision because the respondent made up its mind and came to a conclusion on an issue. This was the first time any request had been made to consider treatment injury and was the first decision made regarding potential treatment injury. The submission is made that the letter was more than a declaration of ACC's position it was a decision declining to investigate cover for treatment injury. [16] The appellant further relies on Reglea v ACC where Judge Ongley acknowledged there can be multiple forms of cover for the same injury and the different heads of cover may attract additional entitlements. [17] The further argument was made that the 2005 amendment to s 284 of the Act removed discretionary reporting and replaced the discretion with the mandatory "must report" wording. [18] The appellant maintains that referral to the Health & Disability Commissioner cannot override the statutory reporting regime which is included in the Act. [19] The respondent opposes the application on the following basis: Haewea v ACC [2004] NZAR 673 at [18] Reglea v ACC [2012] NZACC 149 [a] The letter of 12 October 2011 was not a reviewable decision. It was not a request for entitlements but a request for ACC to carry out investigation into circumstances surrounding Mr Henry's death. The letter of 12 October 2011 was declaratory of ACC's position and was not a decision. [b] There is a long line of authority beginning with Hull v ACC ' that the confirmation of a prior decision does not constitute a decision which gives rise to further review and appeal rights. [20] The respondent referred to Estate of Waeng v ACC Justice Gendall [26] It is clear that a claimant cannot demand or insist the corporation reconsider or revise its original decision and if it declines to do so, then contend that such a response is a decision that is subject to review" (21] The claimed error regarding ACC's reporting requirement under s 284 is misconceived. The respondent was found by Judge Spiller to have only been required to report "in the course of processing claims" for treatment injury or where s 284(1) applies. In the present instance ACC had already granted cover before the approach was made for further investigations as a treatment injury. Accordingly no obligation to report as an ancillary function of the Corporation in relation to decisions on cover for treatment injuries arose. [22] The respondent concluded that no serious and bona fide issues of law had been identified as arising out of Judge Spiller's decision. The consequence being that application for leave to appeal to the High Court should be refused. Consideration [23] The appellant cites ACC v Haewea' this case was in relation to civil proceedings. The court was required to ascertain whether Ms Haewea was a claimant under the Act and had a right of review or appeal in relation to a claim. The Court was required to apply statutory criteria and engaged in an application of s 6(1) $ Hull v ACC [1007] NZACC 249 Waeng v ACC 13 September 2005, CIV-2005-485-572 ACC v Haewea supra of the Act. Ms Haewea was not successful because the letter she had received stated the position of Accident Compensation concerning a debt it claimed to be owed. Ms Haewea was no longer a claimant having ceased to be so in 1998. Rather than support the position contended for by the appellant the decision requires application of the section, in a conventional way, to the letter supplied. In this case what Judge Spiller did was to apply the same principles. The application of the factual circumstance led to a finding of fact that was open to Judge Spiller in the circumstances. [24] The respondents submissions and reliance upon Hull v ACC and the Estate of Waeng v ACC answers the contentions made by the appellant. [25] The argument which is made with regard to s 284 requires examination of the provision. The factual finding made by Judge Spiller was that the request for consideration of treatment injury followed a decision to allow the claim. Such a factual finding makes application of the provision in the section "in the course of processing claims" an insurmountable obstacle to the argument of the appellant. [26] Having considered the competing arguments no bona fide issue of law capable of serious argument remains. Accordingly the application for leave to appeal to the High Court is declined. [27] No orders as to costs are made. DJ Sharp District Court Judge 8 Hull v ACC supra ' Waeng v ACC supra