Cleggett v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2014] NZACC 120 ACR 445/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 162 OF THE ACT BETWEEN JILDA CLEGGETT Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: Decided on the papers at Auckland Judgment: 9 May 2014 JUDGMENT OF JUDGE L G POWELL [1] This is an application for leave to appeal a judgment of Judge Ongley delivered on 28 November 2013'. Judgment Appealed Against [2] In the appeal before Judge Ongley the applicant challenged the decision of the respondent dated 6 April 2011 to pay compensation for whole person impairment suffered by the applicant. The applicant considered a higher level of compensation was warranted. In his judgment Judge Ongley noted that the decision was based on an assessment undertaken by Dr Thakurdas, peer reviewed by Dr Percival, which applied the methods set out in the American Medical Association Guides to the Evaluation of Permanent Impairment (4" edition) and the ACC user handbook. The final outcome of Dr Thakurdas's assessment was that the applicant was suffering a 16% whole person assessment and this was accepted by the respondent and provided [2013] NZACC 395 the basis of its decision of 6 April 2011 to pay compensation based on this level of impairment. [3] Judge Ongley noted that both at the review and after the appeal had been filed much irrelevant documentary material had been placed on the record notwithstanding that prior to hearing Judge Joyce QC had issued a Minute to give guidance to the applicant with regard to the type of evidence required to support the appeal. Despite this further similar material appears to have been provided when the appeal was heard. The appeal hearing itself had to be adjourned when time ran short. Following the adjournment of the hearing Judge Ongley issued a Minute, which is referred to in the judgment, reiterating the type of evidence that was required to support the appeal and giving the applicant the opportunity to file such further material. Judge Ongley noted in the judgment that in the event some 494 additional pages of material was filed by the applicant but none of it was relevant to the matter at issue in the appeal namely whether the whole person impairment had been properly carried out by Dr Thakurdas. In this regard His Honour noted at paragraph [14] of his judgment: I have looked at all the documents provided by the applicant. They do not support an arguable case. The correctness of an assessment under the legislation is a matter for medical judgment and application of the AMA guides. The fact that the Court's opinion cannot be substituted for medical judgment has been pointed out in the Minutes from Judge Joyce and from me. [4] Judge Ongley then noted that there was no contrary medical professional evidence to challenge Dr Thakurdas' assessment nor was there any patent omission in the assessment which would give the Court a basis for otherwise interfering with the assessment. With reference to the decision of Judge Hole in Wv ACC His Honour concluded: [18] There is no medical expert evidence dealing with the content of the assessment. In the material that the applicant has provided, I can find nothing else that could be regarded as a question of objective fact bringing the assessment into question [19] In these circumstances, nothing is to be gained by permitting the ntroduction of further material, or by resuming the oral hearing. It is clear that the applicant's approach to the appeal is unfortunately misconceived and is directed at wider issues and not at any relevant point that might warrant further examination of some possible error in the WPI assessment. [2004] NZACC 284 [20] For those reasons the appeal is dismissed. Discussion and Analysis [5] I have spent some considerable time reading and attempting to understand the submissions filed by the applicant in support of the application for leave to appeal but have found it difficult to identify what the applicant considers to be wrong with Judge Ongley's decision on any basis, let alone with regard to any discernible question of law. [6] In particular the applicant has not identified how Judge Ongley's approach to the appeal was incorrect: that in the absence of specialist medical evidence or clear error the Court is unable to interfere with the type of assessment that was the subject of the appeal. At best the applicant has alleged that she was not given the opportunity to place such relevant evidence before the Court. Such criticism is manifestly not justified given, as noted above, Judge Ongley clearly provided the applicant time to file further evidence following the adjournment of the hearing and indeed identified the type of evidence that was needed to support the appeal. Furthermore, the applicant took advantage of that opportunity and filed a considerable amount of evidence which was in turn considered by Judge Ongley before he reached the conclusion on the facts that there was nothing in the evidence before him to bring Dr Thakurdas' assessment into question. [] In the circumstances I accept the submission of the respondent that no question of law has been raised and agree that there is no possible basis for leave to be granted. Result [8] The application is dismissed. Judge L G Powell District Court Judge ACR 445-12.doc(aw)