Hardiman v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. Job /2009 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an Application for Leave to Appeal to the High Court pursuant to Section 162 of the Act BETWEEN IRENE HARDIMAN (Al 534/05) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The applicant has made application for leave to appeal to the High Court in respect of a Judgment delivered by His Honour Judge D A Ongley on 24 July 2007, being Decision 170/07. [2] The issue in the appeal was the correctness or otherwise of the respondent's decision of 11 November 2004, whereby it declined the applicant's application for payment for the costs of surgery to treat a C5/6 disc lesion. [3] In short, the respondent's reason for declining to accept liability for the cost of such surgery was that the medical condition for which surgery was sought, namely a C5/C6 disc lesion was not an injury or a medical condition which the appellant had suffered in the accident of 11 November 1983, being the date when the applicant's covered back injury was suffered. 534.05 (pg) 2 [4] The background to the bringing of the treatment claim is covered extensively by Judge Ongley, and he was able to have reference to a significant number of documents which had been presented by counsel for the parties as an agreed Bundle. (5] The first matter to note is that the applicant stated that she suffered injury by accident on 11 November 1983 when she slipped on a wet floor and hurt her back. It is the case that she did not bring a claim for cover under the 1982 Accident Compensation Act in respect of any injury claimed to have been suffered in that fall until May 1985. Documents 5,6, and 7 in the Bundle identify the bringing of that claim. [6] Judge Ongley identified those documents as being the documents indicating the date of the first claim and which included a short letter of explanation from the applicant as to why there had been a delay in the bringing of her claim. [7] In paragraph 7 of his Judgment, the Judge notes that the first mention of a neck injury is in an X-ray report of 5 September 1985 and thereafter the fact of a disc lesion at C5/C6 is referred to by various specialists who treated or reported on the applicant. [8] In the Decision part of his Judgment, Judge Ongley identified that the outcome of the appeal turned on whether the applicant had cover for a C5/C6 disc lesion caused by the accident on 11 November 1983. [9] The Judge reviewed the evidence pertaining to that matter, including the fact that documentation in relation to a lump sum settlement paid to the appellant in December 1986 referred to the injury for which the lump sum was granted as being "jarring injury to neck activated a C5/C6 disc" and with that document, being document 26, noting the date of accident as being 11 November 1983. [10] At paragraph [47] of his Judgment the Learned Judge stated that he considered the lump sum award as being secondary evidence of a grant of cover, but in the circumstances it did not have sufficient weight for a conclusion that there was in fact an accepted claim for cover pertaining to a C5/C6 neck lesion. [11] The Judge then noted that in the absence of a specific grant of cover for a C5/C6 lesion, the applicant's case depended on her cover for the general consequences of a fall, and whether those consequences should be taken to include a neck injury. The Judge then considered that issue and determined that there was insufficient evidence 3 that the C5/C6 lesion was caused by the November 1983 fall, or that the fall contributed to the injury or the condition for which surgery was required. [12] Against that background, Mr Miller, Counsel for the Applicant, submits that a question of law arises, namely whether the 1982 Accident Compensation Act required a formal application for cover or letter of acceptance after the initial claim lodgement or any extension of injury site. [13] Counsel went on to submit that the Judge erred in not taking a generous and unniggardly approach to the issue of cover and apply the test contained in the High Court decision of Rangiwhetu (HC Wellington, CIV -2006-485-1402. [14] I take it that counsel is submitting that the Learned Judge erred in not applying the test which Justice Mallon applied in that Rangiwhetu appeal whereby she was able to determine that a written application could be taken as having been made by reference to several documents, if taken as being stapled together. [15] Mr Barnett, Counsel for the Respondent, referred to the Judge's approach to the issue in the appeal as being as follows: "If Judge Ongley had decided this appeal on a technical basis, namely, that there was no claim for cover for a neck injury, then he would not have needed to find that there was "insufficient evidence that the injury was caused by the November 1983 fall". All that he would have needed to find was that in the absence of an express claim for cover for a neck injury, there can be no cover for neck injury. It is apparent on the face of the decision that Judge Ongley is exploring the evidence so that he can decide whether or not there was an injury caused by the fall on 11 November 1983. It is true of course that the decision discusses whether an application to cover for a neck injury had been filed or made but that was just part of all consideration of the evidence going to whether or not a neck injury had been suffered by the fall on 11 November 1983. If the claim for cover had referred to a neck injury (as well as the back injury), then that would have been good evidence that a neck injury had been suffered by the fall. That was the thinking of Judge Ongley. There is a good deal of evidence pointing to there being no neck injury suffered a s a result of the fall on 11 November 1983 much of which is discussed by Judge Ongley at [48 of the decision. . . .". [16] Counsel then submitted that Judge Ongley's decision was one based on his assessment of the medical evidence leading to a finding of fact that it had not been shown that a neck injury had been caused or suffered in the November 1983 fall, or that the fall contributed to the injury or the condition for which surgery was being sought. In those circumstances, counsel submitted that no question of law arises. [17] The essence of counsel for the applicant's submission is that Judge Ongley should have in fact determined that the appellant's neck injury of C5/C6 disc lesion was a covered injury and that he should have done so by adopting a generous and unniggardly approach to the issue in the same vein that Justice Mallon identified should have been the case in the Rangiwhetu appeal [18] The difficulty which that submission causes is that it would require the Judge to consider matters pertaining to a grant of cover for personal injury under the Accident Compensation Act 1982. This is clearly the case from the question of law which counsel has submitted is the question to be considered by the High Court. [19] Whilst I have no difficulty in identifying the question as a question of law, I must at the same time find that it is not a question which Judge Ongley or any District Court Judge exercising jurisdiction under Accident Compensation legislation from 1 April 1992 onwards can undertake. In short, the District Court has no jurisdiction to consider issues of cover arising out of the 1982 Act. [20] As earlier noted, Judge Ongley made a finding of fact that there was insufficient evidence to determine that the neck injury was a covered injury. This was a finding of fact based on the evidence. It is counsel for the applicant's contention that the Judge should have taken the extra step and found that cover must, by implication, be extended to the neck injury by reason of various subsequent events, particularly the lump sum payment. [21] The situation as I find it is that Judge Ongley had no jurisdiction to consider the question of law which counsel for the applicant considers he should have, and which he now requests the High Court to do by way of appeal from the Judge's decision. [22] It is the case that at the end of the day the Judge determined the issue in the appeal on findings of fact, namely that the medical evidence did not establish that the appellant had suffered the neck injury in the fall of November 1983, or that the fall contributed to the injury for which the surgery was required. [23] If it is the contention that the evidence overall ought to have led to a granting of cover for the neck injury, then that is a matter which I find is beyond the District Court's jurisdiction as it is wholly a. matter for consideration under the 1982 Accident 5 Compensation Act. The District Court's jurisdiction to consider matters of entitlement which may have arisen from cover granted under the 1982 Act is contained in the transitional provisions of the 1992 Act, in particular Section 135, which has as its basic requirement that a claimant has had a claim accepted for personal injury by accident under the 1982 Act. If so, all entitlements sought after 1 July 1992 are to be considered under the 1992 Act, or indeed subsequent Acts which followed the repeal of the 1992 Act. (24] Therefore, in the final analysis, I find that whilst counsel for the applicant may have identified a question of law, it is not a question of law which can arise out of the decision sought to be appealed, as the particular question is one which is beyond the jurisdiction of the District Court to consider. In view of the fact that the right to claim cover under the 1982 Act only extended to the lodging of such a claim on or before 1 October 1992, it would therefore have to be that any claim for cover which the applicant may seek to bring would need to be brought under current legislation, namely the 2001 Act. [25] Before concluding this decision, I indicate that I consider a typographical error has occurred in paragraph [48] of His Honour's decision, where in the last sentence it refers to "A neck injury claim was eventually lodged on 17 May 1985 after a long delay . . .". I consider that the only possible injury lodged on that date, based on the evidence, was the low back injury, as evidenced by Documents 5 and 7 of the Bundle, and further by reference to the Judge's finding at paragraph 7 that the first mention of a neck injury was not until the X-ray report of 5 September 1985. [26] If indeed the statement would purport to be a neck injury claim, then the whole of Judge Ongley's decision would be somewhat askew. [27] For the reason that the Judge's decision was one solely on findings of fact, leave to appeal to the High Court is declined. th DATED this 12 day of June 2009 M J Beattie District Court Judge