G v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON [2012] NZACC 164 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 341/11) BETWEEN JENNIFER GLASSON Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: (on the papers) Submissions: Applicant in person Ms F Becroft for respondent Decision: 16 May 2012 DECISION OF JUDGE D A ONGLEY ON LEAVE TO APPEAL TO THE HIGH COURT [1] This is an application for leave to appeal against a judgment of His Honour Judge M J Beattie issued on 17 October 2011, Glasson v ACC [2011] NZACC 298. [2] The appeal question concerned a treatment injury claim for consequences of psychiatric treatment for wrongly diagnosed schizophrenia. The Corporation declined a treatment injury claim on the ground that the appellant suffered no physical injury consequent on treatment that she had received. [3] The appellant has cover for some other injuries including a sensitive claim injury that is the subject of a separate application for leave to appeal against an independence allowance decision. The background included a number of psychiatric opinions and diagnoses. [4] When the Corporation investigated the treatment injury claim, it received an opinion from Dr G W Galpin, psychiatrist. This report was dated 24 November 2010 and it reviewed a number of earlier medical and psychiatric reports. The reports were comprehensive, but in the context of treatment injury the Judge did not have to consider them at length. Whether or not the diagnosis of schizophrenia was a correct diagnosis, the narrow question for the purpose of the claim was whether the appellant had suffered a personal injury in the sense of a physical injury. [5] Dr Galpin was asked to consider whether there had been any physical injury caused by drug therapy. He stated in his report that he was not aware of any physical injury. The judgment recorded that the appellant was not able to identify any physical injury in the course of the appeal, and that her submission to the Court was that she wanted compensation for the way that she had been treated. [6] The Court decided that misdiagnosis cannot be treated as a treatment injury. That is a question of law, but it is not one that is open to argument. Section 32 of the Act states that treatment injury is personal injury. Section 26 defines personal injury as physical injuries suffered by a person. The Court found that there was no downstream physical injury, that is to say that there was no evidence of a physical injury occurring that could be causally connected with the treatment in question. [7] In support of her application for leave to appeal, the appellant referred to aspects of diagnosis, medical advice, treatment and consent issues. She said that she has suffered adverse consequences from drug therapy affecting her concentration and work capacity, and other consequences affecting her employment. [8] None of the submissions in support of leave to appeal touch upon any physical injury. Section 162 of the Act restricts the right of appeal to the High Court to the ground that the decision in the District Court is wrong in law. It is clear from all the material that there is no arguable question of law. The application for leave is therefore refused. Judge D A Ongley District Court Judge