Slee v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 344/2005 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN JAMES DARCY SLEE of Balclutha Appellant (Appeal No. AI 646/04) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at Dunedin on 12 October 2005 APPEARANCES/COUNSEL M Gibson for appellant H Peart for respondent RESERVED DECISION OF JUDGE J CADENHEAD The issue [1] The issue on appeal is the extent of the reviewer’s jurisdiction, in a decision dated 6 December 2004, in a review hearing against the decision made by the accredited employer on the 3rd of September 2004 to decline all entitlements for his covered injury; and as to whether the reviewer correctly exercised her discretion in awarding costs on review. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2005/344- 2005.doc AE Narrative of facts [2] On 27 April 2004 the appellant injured his back while tripping over a block of cheese at work. [3] On 1 June 2004 the appellant provided a medical certificate stating that he was incapacitated as of 13 May 2004. At this point, in light of the fact that it appeared that the appellant had a history of back problems the accredited employer made further investigations about whether there was a causal link between the incident of 27 April and the appellant’s condition. The accredited employer obtained specialist opinion from Mr Hopkins and an MRI scan. [4] On 3 September 2004 the accredited employer issued a decision that the appellant’s problems were not due to injury but to a pre-existing condition. [5] The appellant lodged an application for review against this decision. Before the matter proceeded to hearing the accredited employer obtained further comment from Mr Hopkins. The appellant also produced evidence from Dr Hancock and Mr Hodgson. [6] Following receipt of this information the accredited employer issued another decision, dated 11 November 2004 revoking the decision of 3 September 2004. The accredited employer accepted that “the diagnosed injury satisfies the requirements for a personal injury resulting from this accident”. An e-mail dated 12 November 2004 from the respondent to the appellant’s advocates stated that the managing insurer regarded the appellant’s date of incapacity as being 30 May 2004. This was later amended to 1 June 2004, the date on which that appellant’s general practitioner first completed a medical certificate, with a retrospective date of incapacity of 13 May 2004. [7] The significance of this decision, had the appellant accepted it, would have been that the appellant would not have been entitled to weekly compensation, because he was not an earner immediately before the selected date of incapacity. [8] The accredited employer enquired whether in light of the revocation the appellant would withdraw the application for review. On 18 November 2004 the appellant advised that they were not prepared to withdraw the application for review unless the accredited employer agreed to certain matters. This included the date of 344-2005 2 incapacity. The appellant also requested costs in relation to legal representation and medical reports obtained for the review. [9] By letter dated 19 November 2004 the accredited employer agreed to make payment of medical and legal costs but indicated that the accredited employer did not agree to the date of first incapacity specified by the appellant. [10] By letter dated 19 November 2004 the appellant advised “Mr Slee does not wish to withdraw his application for review unless WorkAon accepts the conditions in my correspondence. In fact, it may be the case that Mr Slee’s incapacity predated 13 May 2004 and I will ask Dr Gray for his opinion on this point when he returns to work next Monday.” [11] The matter proceeded to review at which time the reviewer noted that the appellant was proceeding to review because he could not reach agreement with the accredited employer as to the date of commencement of his incapacity. The appellant was seeking the reviewer to determine this issue. [12] The reviewer considered that the date of incapacity was not within the scope of the decision under review. The reviewer noted “it is not possible for me to make a decision on this point as I do not have jurisdiction to do so. My jurisdiction is confined to the decision Mr Slee seeks to review. That decision has been revoked. Therefore there is nothing left on which I can pronounce.” [13] The reviewer awarded costs to Mr Slee for the preparation of and lodging of the application for review, other preparation of case for review, and the registered specialist’s reports. The reviewer declined costs for the representative appearance at the hearing and transport to and from the hearing. The reviewer did not consider that it was reasonable for the review to be pursued once the decision under review had been revoked. [14] A decision on date of incapacity was made on 20 December 2004. This decision found that the appellant was not an earner before the first date of incapacity. That decision itself went to review in March 2005. The review decision was in favour of the appellant. Accordingly, the appellant is now entitled to weekly compensation and is being paid weekly compensation by the accredited employer. The issue of backdated entitlements has taken some time to resolve as information was required from WINZ and the appellant. 344-2005 3 The review decision appealed from [15] The reviewer said that she had no difficulty in understanding why the appellant wished to have a decision as to the date of the appellant’s incapacity, as the appellant’s situation had remained unresolved for some time. However, it was not possible for her to make a decision, as she did not have jurisdiction as the decision sought to be reviewed had been revoked. There was nothing left to pronounce upon. [16] The reviewer declined jurisdiction, but directed that WorkAon should issue a fresh decision with review rights regarding the date of the appellant’s incapacity. She urged the respondent to do this as quickly as possible. [17] The reviewer declined to award costs of the hearing and transport costs to the review hearing, as she considered it was not reasonable to continue with the review hearing once the decision had been revoked. The second review decision [18] The second review decision quashed the primary decision of the respondent dated 20 December 2004 to the effect that the appellant was not an earner at the date of his incapacity. This reviewer found that the date of incapacity was 13 May 2004 and accordingly the decision of 20 December 2004 should be quashed and that the appellant was entitled to weekly compensation as from that date. [19] On this review decision the appellant was awarded costs. Decision [20] The reviewer was correct to determine that there was no jurisdiction at review for the question of start date of incapacity to be resolved. The jurisdiction of the reviewer was limited to the scope of the decision under review. That decision was the letter of 3 September 2004, which addressed the issue of whether there was a causal link between the appellant’s condition and the injury that occurred on 27 April 2004. This decision did not address the question of the date of the appellant’s incapacity. Once that decision was revoked there was no live issue to review. Accordingly, the reviewer’s finding that there was no jurisdiction was correct. 344-2005 4 [21] The reviewer gave the appellant good advice to apply for a further primary decision as to the issue of the date and this was followed up by the appellant, who succeeded at the second review hearing. After the second review hearing there was no substantial issue left to pursue, except the failure to award costs on the first review hearing. [22] The scope of an appeal, again is fundamental to the issue presented. Section 149 of the Injury Prevention, Rehabilitation and Compensation Act 2001 provides: “149 Who may appeal against review decision (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. (2) The Corporation 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. (3) However, neither a claimant nor the Corporation may appeal to the District Court against a review decision on a decision by the Corporation under the Code on a complaint by the claimant. (4) The employer may appeal to a District Court against a review decision that an injury is a work-related personal injury. (5) Repealed. (6) A person who had a right to be present and to be heard at a hearing because of section 142(d) may appeal to a District Court against a review decision that an injury is a work-related personal injury. (7) Any affected person may appeal to a District Court against a decision on the award of costs and expenses under section 148.” [23] This section sets out the power to hear an appeal. The scope of the appeal is confined to the review decision under appeal or an award of costs pursuant to section 148. The jurisdiction to be exercised is one of appeal and not that of an original hearing. [24] The primary decision governs the scope of a review decision and the ambit of the appeal concerns this primary decision and the review hearing. The appeal hearing can cure any defects in the review decision, if the primary decision is correct. 344-2005 5 [25] Frequently, counsel contend for powers that are wider than the provisions of the present legislation. Often the argument is that the appellate jurisdiction under the Accident Compensation legislation gives all the powers proposed in the civil jurisdiction of the District Court. The foundation for this argument is contained in section 150 of the Injury Prevention, Rehabilitation and Compensation Act 2001 which provides: “150 District Courts rules and this Act apply to appeal An appeal under section 149 is dealt with in accordance with the District Courts Rules made under section 122 of the District Courts Act 1947, as modified by this Act and any regulations made under it.” [26] Section 122 of the District Courts Act governs the use of the District Court Rules: “122 District Courts rules … (3) Without prejudice to the generality of the foregoing provisions of this section, the power of making rules shall extend to— (a) Prescribing [the manner and] the Court in which proceedings are to be commenced and the procedure to be adopted where proceedings are commenced in one Court which should, under the Act or the rules, have been commenced in another Court: [(aa) Applying, with or without modifications, provisions of the High Court Rules:] … Providing for any other matters in respect of which rules are contemplated or specially authorised by this Act. ” … [27] There is no power implied for tribunals, such as the Equal Opportunities Tribunal, to make orders for discovery, and any such power must be found in the Act which created the Tribunal: Human Rights Commission v Eric Sides Motors Ltd (1980) 2 NZAR 407, even though discovery is provided pursuant to the District Courts Rules. [28] It is clear from Comalco NZ Ltd v Broadcasting Standards Authority (1996) 9 NZAR 153 that the provisions of a specific rule should not by a side wind take away or expand the provisions of long established principle. In that case the Court of Appeal held that general discovery was not available on an appeal and the 344-2005 6 appropriate High Court Rule did not confer a specific power, absent such power in the primary governing statute. So far as appeals were concerned the appropriate time for discovery was while the case is before the lower Court. If discovery was appropriate in relation to matters before a tribunal, one would expect to find provision for it in the legislation setting up the tribunal. [29] Again, section 122 is concerned with the ability of the Court to make rules regulating the practice and procedure of the Court. The section merely deals with the ability to make procedural rules, and expressly does not confer jurisdiction to create powers. [30] For example sections 34 and 41 of the District Courts Act 1947 confer a power on a District Court to have a jurisdiction in equity. However, injunctive relief arises as a result of a specific statutory power to dispense equity. There is no power under the Accident Compensation legislation to confer a power in an accident compensation appeal to grant injunctive relief. Similarly, there is no power to grant a rehearing the equivalent of a new trial. [31] The appellant pressed me for declarations as to the conduct of the respondent. I decline to do this. It is debatable that I have power to make declarations since the recent changes to the jurisdiction and there are two contrary District Court decisions on this issue. See Manning v Mitchell [1994] DCR 235 constrasted with Vincent v Kaipara District Council [1993] DCR 1042. However it seems clear that I do not have that power under the provisions of the present Act. To illustrate the restricted nature of the jurisdiction reference is made to the powers of the Court upon an appeal. The powers of the Court upon the hearing of an appeal are set out in section 161 of the Injury Prevention, Rehabilitation and Compensation Act 2001: “161 Decisions on appeal (1) The court must determine an appeal by— (a) dismissing the appeal; or (b) modifying the review decision; or (c) quashing the review decision. (2) If the court quashes the review decision, it must indicate the effect clearly. The effect may be, for example, to— (a) endorse the Corporation's decision; or 344-2005 7 (b) require the Corporation to take the action the court specifies in relation to the Corporation's decision; or (c) require another review to be conducted in accordance with directions the court gives.” [32] The appeal can do no more by way of relief than what is set out in the statutory provision. Again, it will be observed that there are none of the ancillary powers expressly conferred by statute that have previously been dealt with. There is clearly no power to grant a declaration. [33] As I have said the substantive issue as to cover and entitlements has been decided in favour of the appellant, well before the hearing of this appeal. Apart from the issue of costs there is no other outstanding matters. The appellant was urging me to make a declaration in respect of hypothetical questions. [34] In Patten v Burke Publishing Co Ltd [1991] 2 All ER 821 Millet J made some very important observations concerning declaratory relief. In particular he quoted from Scarman LJ in Wallersteiner v Moir [1974] 3 All ER 217, at 253: "When what was sought is a declaration, there is the risk of irremediable injustice; the court has spoken and words cannot be recalled, even though later they may be negatived: "nescit vox missa reverti: (Horace Ars Poetica 390). The power of the court to give declaratory relief on a default of pleading, of course exists, but, for the reasons crystallised by Horace in those four words of his, should be exercised only in cases in which to deny it would be to impose injustice on the claimant. This approach leads me to the conclusion that the declaratory relief contained in the minute of judgment annexed to the order of Geoffrey Lane J should be disallowed at this stage." [35] Declarations will not be granted in relation to an abstract or theoretical question in respect to which there is no dispute to any particular factual situation. [36] Here what is sought is a mere declaration that is not consequential to any relief in respect to hypothetical issues. The appellant had succeeded in attaining his entitlements, so substantively, there was only the issue postulated, which was hypothetical. In these circumstances the Court will not entertain that type of issue: Finnigan v New Zealand Rugby Football Union Inc (No 3) [1985] 1 NZLR 190. [37] I am of the view that the appellant should have been awarded his costs and travelling expenses concerning the first review application. I think that it was reasonable that he should argue that issue and the review hearing itself has lent to a constructive outcome. I would quash the review finding as to the costs issue and 344-2005 8 substitute the appropriate costs and disbursement, and travelling costs in favour of the appellant. [38] However, the appellant has failed on the substantive issue of this appeal. In these circumstances I make no order as to costs. DATED at WELLINGTON this 10th day of November 2005. J Cadenhead District Court Judge 344-2005 9