Matthews v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2015] NZACC 54 ACR 516/11 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN JEANETTE MATTHEWS Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers at Auckland Judgment: 12 March 2015 JUDGMENT OF JUDGE L G POWELL [1] This is an application for leave to appeal a judgment of Judge Ongley delivered on 15 February 2013. Judgment Appealed Against [2] In the appeal before him, Judge Ongley was required to determine whether the respondent was correct in finding that the applicant was no longer incapacitated in her pre-injury employment as the Member's Benefit Officer of the Bus & Coach Association (NZ). [3] Having set out the background in some detail, together with the legal test of incapacity, as well as a description of the applicant's pre-injury employment, Judge Ongley then considered the relevant evidence before him. Included in the evidence relied upon by the respondent were reports by Dr David Hartshorn, specialist in occupational and environmental issues, while the applicant relied in particular on the evidence of Dr Neville Berry, a rheumatologist. After consideration of the evidence, Judge Ongley's decision was as follows: [56] I reach the following conclusions on the evidence: (a) The appellant had the skills for "support services" described in her employment agreement. The tasks associated with those skills would ordinarily be exercised in a small office environment with flexibility of movement and posture. (b) Dr Hartshorn considered the dynamics of a small office environment and also other employment tasks that would be required outside the office. He considered that there were a number of reasonable accommodations that could be made with respect to travel to reduce the appellant's requirement for climbing, walking, and squatting activities. (c) After Dr Hartshorn's examination, the appellant lost her weekly compensation and reduced her exercise regime which had been endorsed by Dr Hartshorn and by Mr Leslie, who considered that giving way episodes were caused by quadriceps weakness and certainly not to patella instability. (d) There was a pattern of deterioration during 2011 before the appellant was examined by Dr Berry in January 2012. (e) Dr Berry's view did not significantly contradict Dr Hartshorn's opinion that in February 2011 the appellant's pain or functional disability did not present a barrier to returning to that small office work, or engaging in the external activities of the job. Dr Berry's general observations about pain did not provide reasonable evidence that the appellant was unable to sustain work in February 2011. [57] I find that the Corporation's decision assessing the appellant as fit to work in her pre-injury employment was justified. For the foregoing reasons, the appeal is dismissed. Preliminary Issue: Application for Oral Hearing [4] The applicant has through counsel and direct communication with the Registry sought a hearing of this application so she could present submissions additional to those filed by counsel on her behalf. [5] Having considered the application, I decline to hold a hearing. Applications for leave to appeal in this jurisdiction are customarily dealt with on the papers and, having reviewed the material that has been filed as directed, there is no basis for departing from this practice in the present case. [6] In particular, an application for leave to appeal is concerned solely with whether there is a "question or law capable of bona fide and serious argument"." Wider issues in the relationship between the applicant and the respondent are simply not relevant. Instead I am satisfied that on the basis of the submissions filed I have sufficient material to determine the application. In addition I am also conscious that given the scarcity of judicial resources and the delay that would be required before the application could be heard a hearing would not be justified or appropriate. As a result I will now proceed to determine the application for leave to appeal on the papers before me. Case for the Applicant [7] The applicant submits that Judge Ongley erred in law in finding that the applicant was not incapacitated in her pre-injury employment. In particular, the applicant has picked up on references in Judge Ongley's decision to the judgement of Laurenson J in Irving v Accident Compensation Corporation' in which it was held that "capacity for pre-injury employment does not require fitness for the specific tasks which the claimant was carrying out at the time of injury, if the nature of the employment included a wider general field". [8] As a result, the applicant submits in order to determine whether the applicant could undertake the generic tasks required of the generic employment task, "the generic class of employment needs to be identified". As a result, the applicant submits: 39 .. . that [Judge Ongley], in failing to require identification of the class of employment prior to accepting the ACC's decision that there was capacity for pre-injury employment has erred. The District Court judgment risks a declaration of vocational independence rather than incapacity from pre-injury employment, which is not permitted by the legislation unless particular procedures are followed. Impact Manufacturing (unreported) High Court, Wellington AP 266/06 July 2001 per Doogue J High Court Whangarei AP 53/01 1 1 April 2003 Decision [9] Having considered the submissions and the judgment of Judge Ongley I am satisfied that the grounds advanced on behalf of the applicant are fundamentally misconceived and that there is no question of law raised, let alone one that is "capable of bona fide and serious argument". [10] In particular, as was submitted by the respondent, it is clear from the judgment that Judge Ongley did not ultimately apply Irving so as to conclude that although the applicant could not necessarily undertake all aspects of her pre-injury employment, she could nonetheless undertake a wider generic class of employment, or be at one not detailed in the judgment. [1 1] Instead, it is quite clear from the judgment that Judge Ongley found that the applicant was in fact no longer incapacitated in her pre-injury employment. First, as noted in [3] above, Judge Ongley set out clearly both the relevant legal test and the details of the applicant's pre-injury employment as follows: [13] The test for continuation of weekly compensation by reason of incapacity for pre-injury employment is found in s 103(2), relevantly: (2) The question that the Corporation must determine is whether the claimant is unable, because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury (3) If the answer under subsection (2) is that the claimant is unable to engage in such employment, the claimant is incapacitated for employment. [14] Fundamental to a decision under s 103 is understanding the nature of the claimant's pre-injury employment. A general description of [the applicant's] work was contained in a workplace assessment report done in May 2008, as follows Summary of Responsibilities: Jeanette is responsible for administration duties within this role. This includes answering the phone, working on the computer, photocopying and general paperwork within a small office environment. Work Environment: The office for the bus and coach association is situated on level 3, Boulcott Street, in the Wellington CBD. Jeanette's desk is located within a small office environment with photocopiers and other offices within easy walking distance. Work space layout is good with spacious desks and computers and phones within easy reach. The job is largely sedentary with the flexibility to stand and move around when necessary, Work Organisation: Approximately 80% of the working day would be spent at the desk doing computer related work and answering phones. A further 20% of time would be spent attending meetings, photocopying and other office duties. This allows a change of position from sitting. [12] This formulation of the pre-injury employment appears to have been used by both Dr Hartshorn and Dr Berry in their respective reports, and does not appear to have been a matter of any contention in the appeal. In any event determining the scope of the applicant's pre-injury employment was a finding that Judge Ongley was entitled to make on the evidence before him. [13] While Judge Ongley mentioned that the respondent had referred to the approach in Irving he himself noted that the respondent had in fact presented no detailed argument about any wider category of employment worked in by the applicant. Instead it is clear that rather than attempting to apply Irving Judge Ongley in fact accepted Dr Hartshorn's assurance that the applicant was not incapacitated in her pre-injury employment and set out his conclusions clearly at [54] - [57] of the judgment. Specifically, His Honour preferred Dr Hartshorn's conclusions over those of Dr Berry that the applicant was not longer incapacitated, finding that the condition of the applicant had deteriorated between Dr Hartshorn's assessment on which the Corporation's decision had been based, and the assessment carried out by Dr Berry some 11 months later. Thus the judgment ultimately turned on a straight consideration of the evidence before Judge Ongley, and there was no error of law raised. Result [14] The application is dismissed. There is no question as to costs Judge L G Powell District Court Judge ACR 516-11 Matthews.doc(vr)