McArthur v Accident Compensation Corporation

IN THE DISTRICT COURT AT CHRISTCHURCH [2010] NZACC 159 Al 514/08 UNDER The Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to s. 162 of the Act BETWEEN GRAHAM MCARTHUR Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent BY CONSENT HEARD "ON THE PAPERS" DATE OF THIS RULING 16 September 2010 APPEARANCES/COUNSEL Appellant on his own behalf Mr H A Evans counsel for ACC DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The applicant/appellant seeks leave to appeal from a 31 August 2009 decision of Judge M J Beattie (No. 147/2009) which involved the correctness of a 12 November 2007 decision by Work Aon, the manager of workplace claims for AFFCO (an accredited employer under the Act and by whom the appellant was employed at the time he sustained the injury in question). That decision suspended entitlements granted to the appellant in respect of a lumbar spine sprain on the grounds that the appellant's ongoing back condition was not attributable to the covered injury. [2] After full consideration of the evidence and submissions and with detailed reasoning, Judge Beattie found that there was evidence to establish grounds for the suspension of entitlements to the appellant in relation to his covered injury of lumbar spine sprain so that he dismissed the appeal of the appellant before him. Background [3] The appellant worked for AFFCO an accredited employer under the ACC Partnership Programme. On 21 February 2006, he injured his knee in his role as a 2 labourer/freezer hand. In response to the question as to how the accident occurred, he stated: "I was stacking boxes (lamb) from the line and about 11.30 I suddenly felt a graunch in my left leg. I continued to work but the pain got worse and worse until I ceased all work around 1-1.30." [4] The injury was described as a left knee sprain, and further described as medial collateral deficiency (chronic). On 17 March 2006, Dr T Stewart manipulated Mr McArthur's knee during a consultation for the work related and covered knee injury. The appellant maintains that manipulation was the cause of his back injury, and that his left knee is continuously painful, so that his ongoing problems are knee and back injuries. [5] By letter of 28 April 2006, AFFCO accepted the claim for cover for the event of 17 March 2006. This was recorded as "sprain lumbar spine". [6] There was extensive and detailed evidence adduced to Judge Beattie which he fully considered and analysed in his said decision; and relevant paragraphs from that are: "[28] The only subsequent evidence is that of Dr Glass and whilst part of his report seems to be taken up with consideration of whether the knee manipulation could have led to a back injury, the specific medico-legal question was that which Ms Houston posed and which Dr Glass was not able to answer clearly in the affirmative, he recognising that the appellant was suffering from pre-existing degenerative changes and also the fact that the knee injury may have had some influence on his ongoing condition by reason of extra mechanical stress being placed on his back because of that knee. [29] I have considered Dr Glass's report, which fails to identify that the injury for which cover had been granted to the appellant was for a lumbar spine sprain. In his report Dr Glass seems to simply accept that the appellant's back problems, as they were then manifesting, had their origin in the knee manipulation instant of March 2006. This assessment takes no account of the diagnosis by both Dr Noonan and Mr Thorn that the appellant's ongoing back pain was located in the thoracic spine area and that the lumber pain was minimal or insignificant. [30] I find it to be the case that neither Mr Muir nor Mr Thorn were able to identify a physical injury in the lumbar region or that it was the area that was the source of the pain. Mr Thorn is quite clear that he identified the thoracic region as being the source of the appellant's pain. (31] I find that from Mr Muir's perspective, his final advice of 9 November 2007 was to the effect that he could not advise what the cause of the appellant's current back problem was, save for him noting the degenerative changes in his back which had become symptomatic since the March 2006 injury. [32] Noting as I have that the onus is initially upon Work Aon/the Corporation to show that on the basis of the information in its possession it cannot be satisfied that a claimant is entitled to continue to receive entitlements, I find that the evidence upon which it relied, namely the reports of Mr Muir and Mr Thorn, and to a much lesser extent, the report of Dr Noonan, did not identify that the appellant's then back condition of thoracic pain was not a condition attributable to the lumbar sprain injury for which he had been granted cover. (33] I find and rule that the somewhat general contrary view expressed by Dr Glass, cannot tip the balance in favour of the appellant, as Dr Glass fails to examine the matter from the perspective of considering the ongoing symptoms and the location thereof in relation to the covered injury of a lumbar spine sprain. [34] For the foregoing reasons, therefore, I find that there is and was evidence upon which grounds are established for the suspension of entitlements to the appellant in relation to his covered injury of lumbar spine sprain. This appeal is therefore dismissed." Discussion 7] The appellant seeks leave to appeal from Judge Beattie's decision. The respondent opposes the application for leave on the basis that the appellant has failed to identify an erroneous question of law. [8] Pursuant to s. 162(1) of the Accident Compensation Act 2001, the appellant is only entitled to leave to appeal to the High Court on questions of law. Those questions must be both serious and arguable. [9] It is settled law that the contended point of law must be capable of bona fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues of fact to be dressed up as questions of law, as appeals on the former are proscribed. However, a mixed question of law and fact is a matter of law and a Judge's treatment of facts can amount to an error of law. [10] Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course. [11] By 17 March 2010 letter, that appellant has put forward submissions on his own behalf. The thrust of those are that: [a] information was presented in a misleading way at the appeal; [b] further notes from the GP and excerpts from the appellant's file have been attached, which the appellant considers relate to his claim; [c] the wrong emphasis was placed on the information before the Court. [12] The appellant appears to be critical of the process and the interactions that he had with both AFFCO and Work Aon. He appears critical of his counsel at the appeal hearing. [13] There is no suggestion that Judge Beattie did not have reference to and access to all available relevant medical specialist reports. The submissions for the appellant canvassed all of the medical reports as his counsel saw fit and specifically relied upon the report from Dr Glass. [14] A significant number of specialist medical reports were referred to during the appeal hearing. Judge Beattie relied particularly on the reports of the orthopaedic surgeons, Messrs Thorn and Muir. He had regard to a report from Dr Noonan, an occupational medical advisor, and also considered the report from Dr Glass [15] Ultimately, he concluded that Work Aon/ACC were correct to conclude that they could not be satisfied, on the basis of the information in their possession, that Mr McArthur was entitled to continue to receive entitlements. Significantly, His Honour identified that Mr McArthur's back condition of "thoracic pain was not a condition attributable to the lumbar sprain injury for which he had been granted cover". The medical evidence is that the appellant's current injury is caused by degeneration and is not due to his covered back sprain. [16] Dr Glass' report was considered by Judge Beattie but his view was that it did not reveal any significant flaws in either assessment from Messrs Muir or Thorn. His Honour's decision was carefully reasoned and supported by the medical evidence referred to and relied upon. The appellant cannot point to any error of law, nor can he point to any factual finding that can amount to an error of law. There was a proper evidential foundation to support the decision. [17] Accordingly, the application for leave to appeal is dismissed. Judge P F Barber District Court Judge WELLINGTON Al 514-08.doc(aw)[