Estate of Henry v Accident Compensation Corporation

IN THE DISTRICT COURT [2013] NZACC 17& AT HAMILTON ACR 362/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 AND IN THE MATTER OF OF AN APPEAL PURSUANT TO S 149 OF THE ACT BETWEEN ESTATE TORAN HENRY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD; 18 June 2013 DATE OF THIS DECISION: 21 June 2013 COUNSEL: C Hollingsworth for the Applicant J Roberts for the Respondent RESERVED DECISION OF JUDGE PR SPILLER Introduction [1] This is an appeal from the decision of a reviewer dated 1 June 2012. In this decision the reviewer dismissed an application by the Estate of Toran Henry to review the notification of the Accident Compensation Corporation ("ACC") dated 12 October 2011, declining to assess the Estate's claim for treatment injury. N Background [2] On 20 March 2008 Mr Toran Henry died, due to a self-inflicted injury (Bundle of Documents ("BOD"), pgs. 26 and 31). [3] On 17 April 2008 a claim was lodged with ACC on behalf of Mr Henry. On 18 April 2008, ACC wrote to Ms Vicki Mitchell, who had been nominated as a representative of Mr Henry's estate. ACC advised Ms Mitchell as follows: Cover decision I am writing to advise that ACC has accepted full cover for the death of Toran. Please accept my condolences for your loss. Entitlement Funeral grant: To help meet those costs, ACC has approved the Grant of $5101.38. ... (BOD, pg. 28). [4] In April 2009, the New Zealand Centre for Adverse Reactions Monitoring reported that Mr Henry had taken Fluoxetine, alcohol and Benzylpiperazine. There was a severe probable drug-alcohol interaction and the outcome was recorded as "Died drug may be contributory" (BOD, pg. 29). [5] On 6 October 2011, Mr Henry's mother, Ms Maria Bradshaw, telephoned ACC. Ms Bradshaw's comments were recorded by ACC as follows: Marie advised there had been several enquiries into Toran's death and her solicitor advised that there was sufficient information to lodge a claim for treatment injury. ... Maria advised this is not about compensation, she understands there is no compensation, however she is seeking acknowledgement that the treatment prescribed resulted in the death of her son (Respondents' BOD, pg. 27). [6] On 6 October 2011, Ms Bradshaw wrote to ACC enclosing a completed notification of accidental death. She stated: My purpose in completing this form is to file a treatment injury claim and have ACC investigate the role the drug Fluoxetine played in my son's death. 3 In relation to this I would like to bring to the Corporation's attention the recent assessment of the Centre for Adverse Reaction Monitoring (CARM) that the drug was the probable cause of his death (BOD, pg. 35. [7] Ms Bradshaw noted in the form attached to her letter that the accident happened as a result of "suicide by hanging as a result of Fluoxetine use" (BOD, pg. 31). [8] On 12 October, 2011, in response to Ms Bradshaw's letter, an ACC representative telephoned Ms Bradshaw. The ACC record of Ms Bradshaw's comments is as follows: She [Ms Bradshaw] explained to me that that Toran hung himself while on the drug Fluoxetine which he was taking for depression. She wants to expose the circumstances and have a voice so that the same thing does not happen to other children. ... She has concerns surrounding the treatment her son had or didn't have and she said she was already waiting for HDC [Health and Disability Commissioner] to make a decision on whether or not it would perform an investigation. She said it was taking them a very long time and that's why her lawyer advised her to lodge a treatment injury claim. Their plan was for TI to decline the claim, then take it review where it would be upheld and then they could take it to the district court and therefore gain exposure (Respondents' BOD, pg. 19). [9] On 12 October 2011, ACC clinical advisor Brenda Witt wrote to Ms Bradshaw. Ms Witt advised: Thank you for our discussion today regarding Toran's injury (death) which has already been considered for cover and accepted on 18/04/2008. We've received your ACC 21 (advice of accidental death) form in which you expressed your wish for Toran's claim to be investigated as a treatment injury on 10/10/11. As discussed on the phone today, ACC's role is to provide cover for injuries. In this case we have already provided cover for Toran's injury (death) and therefore ACC will not conduct further assessment of the claim under the treatment injury criteria. As discussed, the Health and Disability Commissioner (HDC) is an appropriate forum for concerns about the treatment provided or not provided. I understand you have already made a complaint with the HDC and await their decision (BOD, pg. 36). 4 [10] John Miller Law confirmed that it was acting for Mr Henry's estate and lodged an application for review. [11] A review hearing was held on 8 May 2012. On 1 June 2012 the reviewer issued a decision dismissing the application for review. The reviewer found that the letter of 12 October 2011 was not a reviewable decision and there was no live issue to decide (BOD, pgs. 38-39). The reviewer also found that the decided case law was clear and the application for review was not reasonably brought because it had no prospect of success, and so no costs were awarded (BOD, pg. 52). Relevant law [12] Section 134(1)(a) of the Accident Compensation Act 2001 ("the Act") provides that a claimant may apply to the Corporation for a review of any of its decisions on the claim. [13] Section 6 of the Act provides that "decision" or "Corporation's decision" includes all or any of the following decisions by the Corporation: (a) a decision whether or not a claimant has cover: ( b ) a decision about the classification of the personal injury a claimant has suffered (for example, a work-related personal injury or a motor vehicle injury): (c) a decision whether or not the Corporation will provide any entitlements to a claimant: (d) a decision about which entitlements the Corporation will provide to a claimant: (e) a decision about the level of any entitlements to be provided: (f) a decision relating to the levy payable by a particular levy payer: ( 8 ) a decision made under the Code about a claimant's complaint. [14] Section 284 of the Act provides: (1) This section applies to information collected by the Corporation in the course of processing claims - (a) for treatment injury; or (b) for personal injury of a type described in section 20(2)(d); or (c) for personal injury caused by medical misadventure; or (d) that are in the nature of claims for treatment injury, but are caused by a person who is not a registered health professional. (2) If the Corporation believes, from information referred to in subsection (1), there is a risk of harm to the public, the Corporation must report the risk, and any other relevant information, to the authority responsible for patient safety in relation to the treatment that caused the personal injury. [15] Section 148(2) of the Act provides: Whether or not there is a hearing, the reviewer- (a) must award the applicant costs and expenses, if the reviewer makes a review decision fully or partly in favour of the applicant: (b) may award the applicant costs and expenses, if the reviewer does not make a review decision in favour of the applicant but considers that the applicant acted reasonably in applying for the review: [16] Section 149(1) of the Act provides: (1) A claimant may appeal to a District Court against- (a) a review decision; or (b) a decision as to an award of costs and expenses under section 148. [17] In Accident Compensation Corporation v Hawea [2004] NZAR 673, Gendall J said that whether or not a communication is a decision requires that the substance be analysed, and that "[to make a decision is to make up one's mind, to make a judgement, to come to a conclusion or resolution" (at paragraph [18]). Again, in Estate of Adam Waenga v Accident Compensation Corporation [2006] NZAR 396, Gendall J stressed that, in determining whether an ACC letter constituted a decision, "substance must prevail over form" (at paragraph [26]). [18] In Hull v ACC, District Court, Christchurch, 249/97, 1 December 1997, Beattie DCJ decided that a "statement which does not purport to be the judgment or conclusion or resolution of the issue" was not a decision but was "simply declaratory of the Corporation's position in the light of its earlier decision". Beattie DCJ stressed that "there can only be one decision at any one time on any particular claim or entitlement under the Act". In Thomas v Accident Compensation Corporation, District Court, Wellington, 145/2006, 13 June 2006, Cadenhead DCJ confirmed that "the mere confirmation of a prior decision does not constitute a new decision" (at paragraph [251). [19] In Estate of SH v ACC and Doctors A, H & E [2006] NZ ACC 166, ACC had accepted cover for a death by suicide, and the estate sought cover separately for a personal injury caused by medical misadventure. The Court held that there was no longer an issue between the appellant and ACC about personal injury cover, and observed: [26] ... I am only concerned with the substance of the appellant's entitlements i.e. about the fact of cover rather than its form. ... Although the appellant would prefer a finding of cover for personal injury as a result of medical error, there is no practical benefit in seeking that because cover has been accepted in full under a different ground. The ground under which a claim is accepted has no bearing on the scope of cover or on available statutory entitlements. [31] I agree with the respondents that this appeal is an unnecessary and inappropriate use of this Court's time and resources. It is the wrong forum for the appellant to pursue medical practitioners. The appellant seeks a declaration of medical error which is not available in the hypothetical. [32] The purpose of the ACC scheme is to determine whether cover, and hence entitlements, flow from a personal injury. [40] It would be an abuse of judicial resources and processes to permit the appellant to attempt to use this Court as an investigating agency for a medical error where there is no live issue about compensation for personal injury. This Court no longer has any jurisdiction to hear and determine the present appeal because the issue of personal injury by cover has been determined. There is no live issue to be resolved. [20] In Regler v Accident Compensation Corporation [2012] NZACC 149, Mr Regler had injured his thigh playing rugby, developed necrotising fasciitis and died as a result. ACC accepted cover for his death and provided a funeral grant. The estate wrote to ACC requesting cover for treatment injury for necrotizing fasciitis. ACC investigated the treatment injury and declined it. The matter went on review and the reviewer found there was no jurisdiction to consider cover on the claimed treatment injury as the issue was moot. On appeal, the appellant's counsel focussed argument on section 284 of the Act. Ongley DCJ dismissed the appeal and observed as follows: [19] In this case it is clear that there is no viable claim to compensation or rehabilitation. Cover has been established for personal injury by accident. If a treatment injury had occurred, there would be no further compensation and no other remedy for the appellant under the Act. [20] The purpose of reviews and appeals is to determine the correctness of decisions made by the Corporation. The Corporation has an ancillary obligation under s 284 to report risk of harm to the public when it collects information in the course of processing claims for treatment injury. There is no specific requirement to collect such information. The scheme of the legislation imposes on the Corporation an obligation to investigate claims. It is not required to investigate claims for the purpose of providing information on risk of harm to the public. Its responsibility is to the claimant. The s 284 reporting requirement is an ancillary function of the Corporation. The Health and Disability legislation provides the usual avenue for the investigation and reporting of health and disability concerns. ... [22] The review and appeal process is dedicated to resolution of disputes between the parties. Even ... within that process there is no legislative indication that a review or appeal should promote the collection of information for reporting under s 284. ... Contrary arguments [21] The Estate of Toran Henry argues that the letter of 12 October 2011 satisfied the statutory definition of a decision. It did more than merely confirm an earlier decision; it declined to investigate cover for treatment injury. The Estate of Henry further argues that section 284 of the Act provided for ACC's mandatory obligation to report a risk of harm to the public to the appropriate authority. In Mr Henry's case there was an issue of wider public importance that had to be investigated and reported, namely, the harm inflicted by the drug Fluoxetine. ACC had an obligation to the wider community particularly in reducing further injuries including deaths in the community. The Estate of Henry also appeals against the decision of the reviewer not to award costs. The Estate argues that the decided case law against its position was not clear and the application for review was reasonably brought because it had prospects of success. [22] ACC argues that its letter of 12 October 2011 was not a decision letter but merely an advisory letter confirming that cover had already been determined. It was settled law that confirmation of an earlier decision was not a new reviewable decision. ACC notes that it accepted full cover for Mr Henry's death on 18 April 2008. Ms Henry's Estate has all the cover and entitlements that can possibly be provided, and there is no live issue between the parties. The claim and proceedings before the Court are therefore moot, academic or futile, and constitute an abuse of process. ACC argues that the decision of the reviewer as to costs was one open to the reviewer to find and should be upheld. Discussion [23] I make the following findings. I find that the letter of ACC dated 12 October 2011 was not a reviewable decision in terms of sections 6 and 134(1)(a) of the Act. I make this decision for the following reasons. I note that the letter confirms that the injury in question had "already been considered for cover and accepted on 18/04/2008", For the reason that ACC had already provided cover for the injury, ACC advised that it would not conduct further assessment of the claim under the treatment injury criteria (see above paragraph [9]). ACC's letter was therefore, in substance, declaratory of ACC's position in the light of its earlier decision to grant cover (see above paragraph [18]). 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 (see above paragraphs [5], [6] and [81). ACC's response correctly reflected the legal position that there can only be one decision at any one time on any particular claim or entitlement under the Act (see above paragraph [18]). [24] In view of my finding that ACC's letter of 12 October 2011 was not a reviewable decision, I am not required to make any further findings as to the substance of this matter. However, for the sake of completeness, I further find that ACC was not required to investigate cover for treatment injury and fulfil its reporting obligations pursuant to section 284 of the Act. I make this finding for the following reasons. Under section 284(2), if ACC believes, from information it has gathered, that there is a risk of harm to the public, then it must report the risk, and any other relevant information, to the authority responsible for patient safety in relation to the treatment that caused the personal injury. But this obligation is imposed on ACC only in relation to information collected by it "in the course of processing claims" for treatment or personal injury specified in section 284(1) (see above paragraph [14]). In relation to Estate Henry's claim for cover, this had already been processed and full cover had been granted before the approach was made by Ms Bradshaw for further investigations without expectation of further entitlements (see above paragraphs [3] and [5]-[8]). The section 284 reporting requirement is an ancillary function of the Corporation. Its central responsibility is to the claimant. Beyond the specified ancillary function in section 284, ACC is not required to investigate claims for the purpose of providing information on risk of harm to the public. The Health and Disability legislation provides the usual avenue for the investigation and reporting of health and disability concerns (see above paragraph [20]). In that ACC has granted cover to Estate Henry for the injury in question, and no further entitlement is sought, there is no longer a live issue between the Estate and ACC about personal injury cover. I note that Ms Bradshaw, representing the Estate, intended that the treatment injury claim be taken through to the District Court in order to gain exposure for her concerns about the treatment of her son before his death (see above paragraph [8]). It would be an abuse of judicial resources and processes to permit the appellant in this case to attempt to use this Court and ACC as an investigating agency where there is no live issue about compensation for personal injury (see above paragraph [19]). [25] Finally I find that the decision of the reviewer not to award costs to the appellant should stand. I make this decision for the following reasons. I note that, in terms of section 148(2)(b), the reviewer may (that is, has a discretion to) award the applicant costs and expenses, if the reviewer does not make a review decision in favour of the applicant but considers that the applicant acted reasonably in applying for the review (see above paragraph [15]). In this case the reviewer found that the decided case law was clear and the application for review was not reasonably brought because it had no prospect of success, and so no costs were awarded (see above paragraph [11]). Like the reviewer, I have found the decided case law on the relevant issues to be clear and that the appellant has had no prospect of success, and so the decision of the reviewer was certainly one that was open to her to find. 10 Conclusion [26] For the reasons stated above, I dismiss the appeal. I make no order as to costs. P R Spiller District Court Judge