Wells v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 201 197 HELD AT WELLINGTON IN THE MATTER of an application for leave to appeal under s 97 of The Accident Rehabilitation and Compensation Insurance Act 1992 BETWEEN IAN WELLS Applicant (Decision No. 82/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent M M Bell for applicant G S Hancock for respondent DECISION OF JUDGE D A ONGLEY ON APPLICATION FOR LEAVE TO APPEAL This is an application on the papers for leave to appeal pursuant to s 97 of the Accident Rehabilitation and Compensation Insurance Act 1992 on the ground that the decision is erroneous in point of law. Mr Bell has filed extensive submissions and the application will have to be considered in more than usual detail The claim concerned personal injury by accident following an accident on 21 April 1991 when the applicant tripped and fell while removing a trailer from his car. The Corporation ceased payments from 1 November 1993 under s 73 of the Act when it determined that the applicant no longer had an entitlement to payments because his present problems were not related to the accident on 21 April 1991. The medical information indicated that the appellant damaged the posterior complex at the lumbosacral junction in the April 1991 accident, but that he had degenerative existing changes in the posterior facet joints, particularly on the left side at the L3-4 and L4-5 levels. He also had degenerative changes in the right hip joint associated with previous fractures evidently suffered in an accident in 1970. The accident damage and the two sites of degenerative change were all capable of causing pain and disability. The question to be decided on the appeal was whether the Corporation was entitled to cease payments under s 73 of the Act on the ground that the applicant no longer suffered pain or disability as a consequence of the 1991 accident. The determination of the appeal in this Court involved examination of medical reports and judgement on the balance of probabilities as to whether the Corporation's decision was shown to be correct according to the facts disclosed from the reports and the inferences to be drawn from them, taking into account other relevant circumstances contained in information before the Court, including the record of oral evidence given before the Review Officer on 4 October 1994. The questions decided in the decision on appeal in this Court were largely questions of fact. On the application for review, the applicant submits that the decision on appeal has been made without any evidence to support it or that there is real doubt that there is any evidence to support the finding, or that the finding is inconsistent with the evidence and contradictory of it. The applicant submits that the question on appeal is a question of law. In Edwards v Bairstow [1955] 3 All ER 48 Radcliffe LJ approved the judgment of Normand LJ in the decision of Inland Revenue v Fraser (1942) SC at p 497 and said: "In cases where it is competent for a Tribunal to make findings in fact which are excluded from review, the Appeal Court has always jurisdiction to intervene if it appears ... that the Tribunal has made a finding for which there is no evidence or which is inconsistent with the evidence and contradictory of it." Lord Radcliffe went on to say at p 57 that ... ... maybe that the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal. In those circumstances, too, the Court must intervene. It has no option but to assume that there has been some misconception of the law, and that this has been responsible for the determination. So there, too, there has been error in point of law. I do not think that it much matters whether the state of affairs is described as one in which there is no evidence to support the determination, or as one in which the evidence is inconsistent with, and contradictory of, the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. ..." The applicant submits also that the finding made by this Court was one that no reasonable Tribunal could have come to on the available evidence, and that there is a question of law, relying on Neale v Hereford & Worcester County Council [1986] 1 ICR 471 in which it was held that a question of law arises: (a) If the deciding body has misdirected itself in law or misunderstood or misapplied the law; or (b) If the decision was made without any evidence to support it; or (c) If it offends reasonableness or is one to which no reasonable tribunal could have come, ie., it is perverse It is stated in Halsbury's Laws of England 1 (1) (4th Edition) para 63, page 74: "Errors of law include misinterpretation of a statute or any other legal document or a rule of common law; asking oneself and answering the wrong question, taking - 3. irrelevant considerations into account or failing to take relevant considerations into account when purporting to apply the law to the facts; admitting inadmissible evidence or rejecting admissible and relevant evidence, exercising a discretion on he basis of incorrect legal principles, giving reasons which disclose faulty legal reasoning or which are inadequate to fulfil an express duty to give reasons, and misdirecting oneself as to the burden of proof." In reply, the respondent refers to Auckland City Council v Wotherspoon [1990] 1 NZLR 76 where Fisher J said at page 88: "I think it is important to note the limitations upon this principle as a ground for a prosecution appeal on a question of law. The ground is limited to the question whether there is any evidence to support a positive factual finding in favour of the defence. It is not concerned with the question whether the Court at first instance had correctly chosen between conflicting items of evidence, rejected evidence on a matter of credibility, declined to make a positive factual finding as to primary facts, or made a positive finding as to primary facts in circumstances where, had it been approaching the matter de novo, the appellate Court might have regarded the evidence as insufficient as a matter of weight. In particular, it is important to distinguish between the situation in which there had been no evidence to support the original Court's finding and the situation in which there is merely argument over the sufficiency of the evidence which was in fact adduced . .. A Court may not make factual findings without any evidentiary foundation but that notion does not operate in reverse. A court can always reject evidence. It can decline to find that facts have been affirmatively established, having regard to credibility, weight and permissible inferences. This explains why informants rarely, if ever, succeed on the "no evidence to support finding" ground. Normally it is the prosecution which must establish facts affirmatively. The defence may be able to demonstrate an evidentiary lacuna on a vital matter. But it is not possible for the prosecution to demonstrate to an appellate Court as a question of law that the Court at first instance was deficient in declining to accept primary facts alleged by the prosecution merely on the ground that the Court had before it evidence which, had the Court chosen to accept it, would have supported those facts. There is in law no answer to the point that the Court at first instance had the power to reject that evidence. The Court cannot conjure up evidence which is not there but it can not be forced to accept the evidence put before it." The argument that the only inference that could reasonably have been drawn from the primary facts was one in favour of the appellant and was also considered in Wotherspoon. Regarding this, Fisher J stated (pp 90): "It is important to note the limitations upon the "failure to draw the only reasonable inference" ground of appeal if it is to retain its character as a question of law. To begin with, this ground is not concerned with the manner in which the original Court had arrived at the primary facts. . .. The second limitation is that this ground of appeal must not be confused with the question whether, among a number of possible inferences, the Court at first instance has drawn the inference which would have been favoured by the appellate Court." - 4. The following extract from Commissioner of Inland Revenue v Frethey [1961] NZLR 245 at p 250 was also noted in Wotherspoon: "I am prepared to accept for the purposes of this case, that whether a particular conclusion is the only possible reasonable inference from certain facts is also a question of law, though there may be some doubt as to that, but between these extremes there is a wide field where the inference to be drawn is a matter of judgment or assessment of weight, or as was said by Lord Buckmaster in Inland Revenue Commissioners v Lysaght [1928] AC 234, 248; [1928] All ER Rep 575, 582, "a matter of degree", and I do not accept that, in that field, the question whether the Magistrate has or has not drawn the most acceptable inference is a matter of law entitling this Court to review the Magistrate on a case stated. As I see it, the decision on these prosecutions fell into that field. There was room for different evaluations of the strength of the case and in my view it is not open to this Court on these proceedings to interfere with a dismissal of the charges." In order to obtain leave, the applicant needs to show that there is more than merely argument over the sufficiency of evidence, and to show that there is no evidence upon which this Court could have reached the conclusion it did, or that the evidence is of such little weight and worth that the decision of the Court is unreasonable. In determining the application for leave, the question is not whether the applicant's argument is established, but whether it is a tenable argument for appeal on a question of law. On this application the Court is not required to review the whole of its decision which is subject to this application for leave, but to determine whether there is evidence that would plainly defeat the applicant's argument that a question of law arises on the intended appeal. There was no dispute that the accident occurred, nor any dispute that it produced painful symptoms and a level of temporary disability. Mr D Jones, orthopaedic surgeon, wrote on 27 June 1991 identifying a restriction of movement secondary to the old fracture dislocation. He said the applicant had no neurological disability identifiable in his lower limbs nor acute vertebral signs. He also identified a minor abnormality of development at the lumbosacral junction. He concluded that the applicant did not require any specific treatment other than simple analgesics, and over the next two or three weeks he would continue to improve. He anticipated the applicant would eventually get back to work long term without any major problem. In a report of 21 October 1991 Mr D J Jones reported that the applicant's disability continued some six months later unrelieved by any treatment, and spontaneous remission of symptoms was unlikely to occur. Mr Jones thought it unlikely that the applicant would return to work as a Telecom linesman but was capable of selected light work. He believed the applicant would be left with a permanent disability. He considered the need for a CT scan evaluation of the low back and considered that the applicant had an assessable claim in terms of s 78. On 9 December 1991 Mr Jones reviewed a CT scan and noted that wear changes occurred at the lumbosacral facets. There was confirmed a minor bifid anomaly on the first part of the sacrum and there was no obvious prolapse. Once again he said that the applicant damaged the posterior complex at the lumbosacral junction and that the damage was responsible for his ongoing chronic disability. He suggested posterior fusion but the applicant was not amenable to surgery. Mr Bell refers to a paragraph at page 9 of the decision in this Court "While Mr Jones considered that the appellant had suffered a personal disability, this did not attract a percentage of disability under s 78 and appeared in his opinion to be only a 'minor structural anomaly". He submitted that the permanent disability and minor structural anomaly were separate things and that the Court made a mistake in interpreting the evidence, giving rise to an issue on appeal as to whether the finding was mistaken and therefore unreasonable. The appellant's cover under the Act continued until he was sent for examination by Mr J Talbot, orthopaedic surgeon, who reported on 5 February 1993. Mr Talbot commented strongly on the applicant's apparent lack of motivation to return to work and his general negative attitude. I think that the Court is entitled to take into account such a personal evaluation by an experienced specialist in weighing self-reporting symptoms which, the Court may consider, are likely to be exaggerated by the claimant's personal conviction that he suffers consequences of his injury warranting payment of compensation. It is noted also that the Review Officer made no findings concerning the credibility of the applicant, but he discounted the applicant's evidence attributing all his pain symptoms to the period of time commencing with the April 1991 accident, and preferred to rely on specialist medical opinions. Mr Talbot said that most people with a hip in the condition of the applicant's are in quite severe pain and on the waiting list for a hip replacement. He considered that the hip was a definite contributory factor in the applicant's inability to work and expressed doubt that the applicant had not suffered pre-existing back trouble connected with his hip injury. He said that the applicant's complaints of back problems were out of proportion to what one would expect from the examination and x-ray appearances, but he qualified that by stating that one is unable to measure a patient's severity of pain, and everybody's appreciation of pain differs. Although Mr Talbot expressed strong scepticism about the applicant's reporting of his symptoms, and thereby laid the ground for an inference of doubt of any diagnosis of continuing disability based on the applicant's report of his symptoms, he did not translate that into a positive opinion that the applicant did not suffer continuing pain or disability caused by the April 1991 accident. Mr Talbot reported again on 19 February 1993 expressing doubt whether the applicant qualified for a lump sum award under 78 of the Accident Compensation Act 1982. although he might qualify for a small award under s 79. On 22 March 1993 the Corporation wrote to Mr Talbot inquiring whether there was any significant evidence that would suggest the applicant's present problems and inability to return to work resulted from the April 1991 injury, or whether degenerative changes in his hip prevented him from working. The Corporation also asked whether there was any residual evidence of Mr Wells' injury on 21 April 1991 and whether he would be suffering disabling from pain in relation to injuries sustained earlier in his life. Those questions did not directly address the question whether the accident contributed to the applicant's pain and disability. Rather, they attempted to arrange causes and effects in separate compartments which is probably a futile exercise in a case such as the present. Mr Talbot replied: - 6- "In reply to your first question, I am unable to find significant evidence to suggest that Mr Wells' present problems and inability to return to work are the result of his injury of 21.4.91. In spite of this, Mr Wells maintains that his back pain dates from that injury. He also denies that his hip is giving him significant problems. I can only repeat what I stated in my report, namely that one would expect a hip which exhibits severe degenerative change to be giving him far more trouble than he says it is. Similarly, one would not normally expect a back like his to be causing as much pain as he claims, although one cannot measure pain and every person has a different response to pain. You ask about the degenerative changes in the posterior facet joints. These, in my opinion, almost certainly predate the 1991 injury. It is difficult to imagine that this sort of degenerative change could have taken place in the seven months approximately between the accident and the x-rays and CT scans which revealed the degenerative changes. I would therefore feel that the degenerative changes in the posterior facet joints predate the 1991 injury. It must still be mentioned that one frequently sees a patient with degenerative changes in a particular joint which honestly appeared to be causing no trouble at all until an accident or an incident such as Mr Wells describes which seem to unmask or bring to light the symptoms of previously asymptomatic degenerative arthritis. There is no clinical or radiological evidence to support Mr Wells' claim that he injured his back on 21.4.91 apart from the degenerative changes which could possibly have been rendered symptomatic by the accident. It is certainly possible that Mr Wells could be suffering disability from pain in relation to his earlier accident, whether or not he suffered an injury in 1991. However, as I also mentioned before in my earlier report, Mr Wells strenuously denied that he had much pain until the 1991 accident. I am afraid that you cannot just look at an x-ray and state that the patient should be suffering pain, because sometimes the patient's pain seems to bear no relationship at all to the severity or otherwise of the degenerative change." That opinion is probably the central piece of evidence that influenced the Review Officer and it found weight with this Court. It took account of the possibility that the applicant continued to suffer pain from the April 1991 injury. At the same time it conveyed the view that he did not. Mr Talbot stated that view most explicitly in saying 'I am unable to find significant evidence to suggest that Mr Wells' present problems and inability to return to work are the result of his injury of 21.4. 91." Mr Bell submits that the lack of significant evidence referred only to clinical or radiological evidence. That is a matter of interpreting and weighing the evidence. The Court is entitled to draw inferences from the medical evidence and give more or less weight to different expressions of fact or opinion. It may appear from the whole report that Mr Talbot harboured such serious doubt about the credibility of the applicant's account of his symptoms that he found the clinical indications more reliable. It is a report from which the Court may have drawn more than one possible conclusion. One possible conclusion was that it supported the respondent's case as being more probable than not. There are some other items of evidence which should perhaps be mentioned but are not of particular importance. There were two opinions expressed by doctors connected with the Corporation and consulted by it for the purpose of evaluating medical opinion. Dr K Morris, district medical officer, noted his opinion on 8 July 1993 that, based on Mr Talbot's letter of 30 March 1993, continuing entitlements should cease. That opinion does not carry any real weight because it is a mixed opinion of law and fact secondary to Mr Talbot's report, and does not contain reasons. It was not referred to by this Court. An opinion by Mr J M Hastings, branch medical officer, dated 5 October 1993 is open to similar comments concerning its weight and worth in determining the present questions. That was also referred to by the Review Officer but not by this Court. The Court had another letter of Mr D J Jones of 1 February 1993 which was written to the Chairman of the Medical Practitioners' Disciplinary Committee. In that letter, Mr Jones repeated his belief that the applicant had a genuine injury to his lumbosacral junction which showed pre-existing asymptomatic structural change. He confirmed his opinion that the applicant had a genuine injury and functional difficulty consistent with the nature of the injury sustained. The Court did not refer to that letter and it does not seem to feature in the current submissions. It was written to the Disciplinary Committee and would require some interpretation. It is not particularly useful. A long report was obtained from Mr B S Mcmillan, orthopaedic surgeon and senior lecturer in orthopaedic surgery at Dunedin Hospital. In the course of that report, he said: "Although Mr Wells suffered a potentially serious injury to his right hip in his 1970 accident, the clinical findings today are consistent with the radiological appearances and his statement that he experiences little in the way of symptoms other than some restricted flexion at the joint. The absence of pain on forcing movements indicates that any pain he experiences here is likely to be of no more than mild degree and in my opinion, the present residual affects of the injury to his hip would not significantly affect his working capacity. It is my opinion that his present complaints are consistent with and due to degenerative arthritic change affecting the posterior joints at several levels in the lower lumbar spine. In particular, the greater worsening of the pain by bending backwards rather than forwards and its relationship to changeable weather, particularly rain, is more consistent with an origin from this cause than from a prolapsed disc, fracture or ligamentous tearing. These changes were already well- marked on the CT scan taken in December 1991, some eight months after his accident. While it is my opinion and experience that such x-ray changes may develop quite quickly, their degree suggest to me that they were already well- established at the time of his accident but could well have caused him little or no symptoms. The back pain referred to in Mr Lowe's letter of 1971 Mr Wells states referred to pressure on the site of his pressure sore and there is no record in his hospital notes of him having suffered injury to or complained of pain in his back following his major accident in 1970. After recovery from this accident he was able to rehabilitate himself into doing quite heavy physical work including work which would have involved putting significant strain on his back and appears to have lost no time from work because of back complaints. In addition, Dr Strydom's letter records that from August 1985 to April 1991 his notes make no mention of complaints of pain in back or hip. It is therefore my opinion that prior to April 1991 that Mr Wells suffered no sign significant pain from back or hip and was not significantly limited in his work ability by complaints from either of these sites. While it is my opinion that it is remotely possible that the fall in 1991 might have produced the marked degenerative changes seen on CT scanning some eight - 8. months later, that the strong balance of probability is that at the time of the fall he had pre-existing and established degenerative arthritic change in the posterior joints of the lower lumbar spine which were essentially symptom-free, and if not symptom-free did not limit his working ability in any way. It is therefore my opinion that the fall caused symptoms to develop when they did in these previously abnormal joints. It is impossible to say at what stage in subsequent life he would have developed symptoms had it not been for his fall, or even if he would have developed them at all although it is my opinion that within five to ten years it is probable that he would have developed symptoms of a similar nature to those he now complains of had it not been for his fall." Mr Mcmillan's opinion was that the 1991 fall caused symptoms to develop. Those symptoms were not evident before the fall and may not have developed at all or for some years. Mr Bell submits on this application for leave that the Court was required to consider whether the 1991 accident had unmasked previously silent or asymptomatic degenerative changes. If that answer to that question was "yes" then again the issue was whether the appellant would by 1993 have still been suffering from his then current disability without the 1991 accident. Mr Bell submitted that Mr Talbot's reports never directly or unequivocally answered those crucial issues. Mr Bell then went on to analyse Mr Talbot's report to show that this Court has taken his opinion too far by stating that it supports the view that the problem now suffered by the appellant is the pre-existing degenerative change. Ms Hancock submits on this application that there is sufficient evidence in Mr Talbot's report for the Court to have based its findings, and that the question which the applicant seeks to address on appeal is essentially one relating to the weight of evidence. It cannot be argued that there was no evidence on which the Court could reach the decision it did. In my view, there is no question of law of the kind suggested by the applicant able to be argued upon an appeal. The applicant's submissions, in analysing the report of Mr Talbot, are directed to the weight to be given by various observations made by Mr Talbot supporting the proposition that symptoms experienced in 1993 were those caused or contributed to by the 1991 accident. However, Mr Talbot's report can be read in a different way giving greater weight than the applicant does to the expressions of doubt about the applicant's account of the origin of his symptoms. It was open to this Court, in deciding the appeal, to take an overview of Mr Talbot's report and to draw a different inference than the applicant would have. The report can be read on the basis that Mr Talbot's acceptance of the possibility that the applicant's account of the onset and continuation of symptoms was a true account was indeed an expression only of a possibility. It can be read on the basis that Mr Talbot favoured the probability that the effects of the 1991 accident were no longer an effective cause of the applicant's problems. In rejecting contrary views to be found in parts of the opinions of Mr Jones and Mr Mcmillan, this Court determined a question of fact that was raised on the evidence. Mr Bell referred also to a statement attributed by the Court to Mr Jones that the appellant suffered a permanent disability that did not attract a percentage of disability under s 78 and appeared to be only a minor structural anomaly. That needs to be read in light of the fact that no award was made under s 78. The apparent error in the judgment is a little confusing, but there is no indication that it was a finding for which - 9 . no evidence was available and which contributed to the ultimate decision on appeal. The Judge had already recited Mr Jones' opinion that the applicant had an assessable claim in terms of s 78. In fact, no payment was made under s 78 because the Corporation did not accept that there was a sufficient percentage disability, and the Judge may have been referring to s 78(6) which prevents lump sum payment when the disability is less than 5%. The only apparent error is the reference to a minor structural anomaly and it does not appear important in light of the fact that the significant parts of Mr Jones' reports were set out verbatim in the judgment on appeal. For those reasons, I find that there is no tenable argument that the judgment is erroneous in point of law and application for leave is refused. DATED at WELLINGTON this 24th day of September 1997 D A Ongley District Court Judge