Glasson v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2011] NZACC 3is UNDER The Accident Compensation Act 2001 IN THE MATTER OF of an application for leave to appeal to the High Court pursuant to section 162 of the Act (ACR 189/10) BETWEEN JENNIFER GLASSON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: (on the papers) Submissions: Applicant in person Ms F Becroft for respondent Decision: 21 october 2011 DECISION OF JUDGE D A ONGLEY ON LEAVE TO APPEAL TO THE HIGH COURT [1] This is an application for leave to appeal from a decision of Judge M J Beattie dated 17 February 2011, Glasson [2011] NZACC 47. [2] The appellant had been declined cover for a treatment injury. She claimed that she had suffered mercury poisoning and Grave's Disease arising from dental treatment. The respondent had determined that no dental treatment received by the appellant could have caused mercury poisoning or Grave's Disease. [3] An earlier appeal had been dismissed by Judge J Cadenhead in Glasson 170/05. That appeal concerned a claim by the appellant that she had suffered physical damage and other consequences caused by dental treatment. The treatment that was identified was in 1987. Judge Cadenhead found that there was no medical evidence to support the appellant's claim. [4] In this appeal, Judge Beattie found that the claim related to the same dental treatment. He also noted that there was no medical certification accompanying the claim. The Corporation had referred the claim to its medical specialist, Dr McGuire, who advised the Corporation as follows: "The issue of mercury poisoning from dental amalgam is a well canvassed claimant topic. There is no evidence put to us to show there is dangerous or toxic mercury toxicity. Dangerous or toxic mercury toxicity is not necessarily a physical injury unless that is related to physical harm or damage to the body. I cannot find a link to Graves disease either. The symptoms ascribed are common and caused by a raft of other factors. There is no evidence of neuropsychiatric dysfunction or evidence of neurological problem (motor impairment, tremor and balance difficulty). Sources of mercury are organic and inorganic. The vast recordings of blood mercury levels (such a recording is common and not in toxic range) is from organic sources so inorganic sources require detailed testing. This is all moot because no evidence is put forward about mercury poisoning other than Ms Glasson's own opinion." [5] The Judge decided that the appellant was bound by findings in the earlier decision of Judge Cadenhead. He decided: [12] ... I find that there is simply no evidence that the medical condition of Grave's Disease was caused by any dental treatment administered to the appellant, and further, I find that there is simply no evidence whatsoever that this appellant has suffered any mercury poisoning as a consequence of any dental treatment. [6] Leave to appeal to the High Court may only be granted if there is a question of law that is capable of argument. Plainly there is none in this case. The appeal was decided on the balance of evidence. The Judge found that there was no evidence to support the appellant's claim. The reasons for judgment dealt entirely with questions of fact. Furthermore, it is a case in which the appellant's case was so lacking in supporting evidence that no other finding would have been possible. [7] I find that there is no arguable question of law. The application for leave to appeal is therefore refused. Judge D A Ongley District Court Judge