Ellis v Accident Rehabilitation and Compensation Insurance,Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 369 199 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN JANET ELLIS DCA 201/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge J D O'Donovan issued on the 5th day of July 1999 under No. 172/99. The issue in that appeal was whether the respondent was correct to decline ongoing entitlements to the appellant under the Act on the grounds that her present incapacity was not causally connected with the personal injury by accident for which she had been granted cover. 2 The evidence was that the appellant had suffered injuries to the back of her head, neck, left shoulder, spine and buttock in a fall whilst working as a nurse on 16 October 1991. The appellant received entitlements under the Act in respect of that injury, including weekly compensation, until the respondent undertook a review of the appellant's condition in December 1996. The appellant obtained a report from Mr OR Nicholson, Orthopaedic Surgeon, in December 1996 and it was Mr Nicholson's opinion that the appellant's disability was as a consequence of degenerative changes to her spine and that there was no longer any evidence of injury by accident and that her present incapacity was not as a consequence of her injury in October 1991. It was as a consequence of Mr Nicholson's advice that the respondent determined to cancel ongoing entitlements for the appellant and its decision to do so was made on 8 January 1997. Subsequently, a further report was obtained on behalf of the appellant from Mr McAuslan, Orthopaedic Surgeon, in which he advised, inter alia, that "It appears to me that her present problems are related to the injuries sustained on 16.10.91 and subsequent events". In his decision the Learned Judge considered the reports of Mr Nicholson and Mr McAuslan and came to the view that when Mr McAuslan's report was carefully scrutinised there was little difference between his opinion and that of Mr Nicholson. In his decision he accepted the opinion of Mr Nicholson and found that the appellant had not discharged the onus which was upon her to establish that there was a causative link between her present incapacity and the injuries suffered in the accident on October 1991. It was on that finding of fact that His Honour dismissed the appeal. In her submissions in support of the application for leave, Mrs Smith counsel for the appellant, submitted that the evidence of Mr McAuslan did provide a causal link and that his report did satisfy the onus of proof. It is on the basis of that submission that 3 she contends the Learned Judge was wrong and that the appellant should be entitled to have the matter reconsidered on appeal. Mr Richards, counsel for the respondent, submitted that the Learned Judge made a finding of fact, preferring the evidence of Mr Nicholson to that of Mr McAuslan where there appeared to be a difference, and that as such the Judge was making a finding of fact based on an evaluation of the medical evidence and that there was no question of law on which to base an appeal to the High Court. Having reviewed His Honour's decision, I am in agreement with counsel for the respondent's submission that there is no question of law involved in this matter which the appellant could seek to raise. There is no dispute that the question of law which His Honour was required to consider namely, that for continued entitlements under the Act there must be established a continuing causal link between the personal injuries suffered in the accident for which cover was granted and the incapacitating symptoms currently displayed. That is a well settled principle of law under the Act in respect of which there is no argument. In this appeal it was simply a question of a consideration of the medical facts applied to that settled question of law. Section 97 of the 1992 Act allows a prospective appellant to appeal to the High Court on a question of law. There is no question of law involved in this prospective appeal and therefore I rule that the appellant's application for leave be declined. DATED at WELLINTON this 14M day of December 1999 MJ Beattie District Court Judge 201.98Ellis.doc(gm)