Peters v Accident Compensation Corporation (Jurisdictional issue and Entitlements)

IN THE DISTRICT COURT AT ROTORUA [2017] NZACC 134 ACR 275/15 ACR 121/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN JIM PETERS Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 27 September 2017 Appearances: The appellant in person C Hlavac for the respondent Judgment: 9 November 2017 RESERVED JUDGMENT OF JUDGE DENESE HENARE (Jurisdictional issue-whether a reviewable decision; $48(c) claim for specified entitlement; effect of NZ superannuateon- clause 52, Schedule 1 of the Accident Compensation Act 2001 [1] These appeals come to the District Court from two review decisions: Decision dated 19 February 2015 declining jurisdiction in respect of a letter from the Corporation dated 14 July 2014, on the basis the letter was a restatement of an earlier decision of 27 March 2013 and was not a reviewable decision; and Decision dated 21 August 2015 upholding the Corporation's decision of 12 February 2015 declining weekly compensation in relation to a claimed treatment injury, on the basis Mr Peters does not have cover for that injury. First Decision - Jurisdictional issue - a decision capable of review Background [2] In 2005 Mr Peters fell through a roof and injured his back and neck. In October 2005 Mr Peters had clavicle surgery. In December 2006 Mr Peters subsequently underwent lumbar L3/S1 fusion and bone graft, which included screws and rods from L3 to SI. Mr Peters was discharged from hospital and underwent rehabilitation which included physiotherapy. [3] On 10 September 2012, Mr Peters' GP, Dr Armstrong, submitted an injury claim form for a muscle injury strain, right side occurring on 1 October 2007, stated to have occurred during rehabilitation exercises using a swiss ball under the supervision of a physiotherapist. The Corporation accepted cover. [4] Mr Peters' evidence is he was undergoing an exercise called a Russian roll during physiotherapy using a swiss ball and he felt severe pain in his right thigh. Mr Peters then commenced acupuncture treatment. [5] On 17 December 2007 he was seen by Mr Bohm, Orthopaedic Surgeon who recorded that: Seen again today with his back and leg pain. He continues to have quite marked discomfort and pain in his right flank and buttock. His leg pain is less specific but is certainly in origin of his original pathology. He also has a separate issue with pain down the medial aspect of his right thigh that has been present since doing swiss ball exercises. This is not a new injury but related to his initial problem. (emphasis added) [6] Mr Bohm reported on 17 March 2008 that Mr Peters' lumbar spine was continuing to cause difficulties. [7] In September 2008 Mr Peters underwent a CT scan which showed non-union at L3/L4, although a sound union at 14/5 and L5/S1. Mr Bohm advised this non-union required a re-fix and bone graft. [8] On 24 October 2008 Mr Peters sustained injuries when he fell off the back of a truck while working, hitting the back of his head and left elbow. The Corporation accepted cover for contusion of the face, scalp, and neck, abrasion to his elbow and a thoracic sprain. 9] On 5 December 2008 Mr Peters underwent revision surgery, performed by Mr Bohm, to correct the non-union at L3/4 which involved the insertion of screws and further bone grafting. Surgery was funded by the Corporation on the basis that the need for surgery was causally linked to his covered injuries from 2005. [10] On 29 September 2012, Dr Armstrong lodged a treatment injury claim for a muscle injury strain, noting that "in some way using a swiss ball resulted in a muscle strain". The claim form referred to the letter by Mr Bohm of 17 December 2007. [11] The Corporation received Mr Peters' account that the swiss ball exercises had caused his spinal fixation screws to pull out, requiring further corrective surgery to be undertaken in December 2008. This information was provided to Mr Hunter, who noted in his letter of 11 January 2013 that he had requested a report from Mr Somerville, "but this has not been forthcoming". [12] The Corporation requested Mr Hunter consider the following questions: Has Mr Peters sustained a physical injury relating to his spinal fusion screws? Are you able to identify any other physical injuries sustained whilst receiving treatment? If so, have the injuries been caused by the physiotherapy exercises he was prescribed? What is the most likely cause of the loosening of the spinal fixation screws'? [13] On 20 January 2013 Mr Hunter reported: The ACC 2152 refers to a muscle strain injury on 17/12/2007. This is stated to be due to an exercise with a swiss ball during a rehabilitation programme. It is surmised that this loosened fixation screws leading to the need for revision spinal surgery on 5/12/1008. The operation notes confirm the loose screws in L3 which were replaced with larger ones and further bone grafting undertaken. It also noted that the fusion at the upper level L3-4 was un-united [14] In response to the questions posed by the Corporation, Mr Hunter advised: 1. There does not appear to be any physical injury in addition to the lumbar muscle sprain covered. The ACC 45 signed 10/12/2012 gives the date of that injury as occurring 1/10/2007, diagnosed as: muscle injury/strain right. There are no physiotherapy records at that time. Physiotherapy treatment 15/5/2007 - 12/7/2007 record a satisfactory response to the treatment given. 2. This seems very unlikely on the records available. 3 . The screws inserted into the vertebral pedicles are there to hold the rods used to bridge the segment to be fused immobile by the bone graft heals and fuses and stabilises that spinal segment. If the bone graft does not set and mature and strengthened take the biomechanical forces off the fixation screws and rods then either the screws loosen or the rods break. This is due to metal fatigue or tension and leverage on the screws which loose fixation in the bone. This is a gradual process from repetitive stress and strain and not due to a one off traumatic event. [15] On 27 March 2013, the Corporation declined the claim for a treatment injury or a consequential injury. The letter stated: We're unable to approve your claim because it does not meet the criteria for a treatment injury or a consequential injury. We have enclosed the following information which helps explain our decision in more detail Treatment Injury Report Copy of the External Treatment Injury Advice [16] In the period February 2014 and June 2014 there was an exchange of files and correspondence between Mr Peters and the Corporation. On 14 July 2014 the Corporation noted in an internal memo that: Clinical information supplied reviewed to see if claim for reassessment. A lot of information had been previously supplied and some new which is repetitive in some volumes but nil information noted that requires ACC to reassess claim. [17] On the same date, the Corporation wrote to Mr Peters: Thank you for the request for the information submitted to be looked at and considered for having the claim reassessed. Having assessed the information received, ACC regretfully advise that the information supplied does not alter ACC's original decision dated 27/03/2013. One option available to you is a late lodged review as outlined in a letter sent to you by the technical claims manager dated 16-04-2014. [18] Following Mr Peters' application for review, a case conference was convened on 3 December 2014. The minutes of the case conference record that Mr Peters' main purpose in lodging his application was to seek payment of weekly compensation. The minute records the Corporation's view that the letter of 14 July 2014 is a reaffirmation of the earlier decision to decline cover made on 27 March 2013. Further, that Mr Peters had cover for his earlier lumbar injury, and since entitlements could potentially be paid under that earlier claim (subject to eligibility for any specific entitlement) there was no benefit to Mr Peters pursuing his present claim for a treatment injury. The minutes record agreement by the parties regarding the following steps to be taken; Mr Peters would lodge an application for review in respect of the decision of 27 March 2013 and withdraw his application for review in relation to the letter of 14 July 2014; The Corporation would make a decision as to whether it accepted a late lodged review in respect of the 27 March 2013 decision; and In the interim Mr Peters would seek weekly compensation from his local branch based on his earlier covered injury. [19] Notwithstanding the agreement, Mr Peters did not withdraw his review application in relation to the 14 July 2014 letter, nor did he seek to lodge a late review application in relation to the 27 March 2013 decision. [20] At review, the Reviewer dismissed the application on the basis that the Corporation's letter of 14 July 2014 was not a decision capable of review. The Case for Mr Peters [21] Mr Peters spoke to his written submissions dated 24 September 2017 and provided his claim files. [22] A document provided by Mr Peters dated 26 August 2012 records his statement about the physiotherapy and pain when undertaking the exercise using the swiss ball: I do not have any problem with the physiotherapy clinic in any way. I attended a RTW Course spread over 3 months with Anthony twice a week. He introduced different sets of exercises to add to what I had learned the week before. At the last two sessions he was at the gym but was keeping his distance just to make sure I did things right? My problem started when I was using a large swiss ball rolling backwards as instructed. That is when I started to really feel a lot of severe pain. Anthony said I had probably strained my adductor tendon loins muscles. I was also attending the Owhata Clinic twice a week for acupuncture with Jan Miller, this gave me a lot of relief from the pain, but it only gave a short term relief. The late Mr Ross Bohm was my orthopaedic surgeon. He spent a lot of time trying to sort my problem out. He had x-rays done which could not tell him much as I had so much metal in my lower spine it was hard to check. I was sent to see Mr Richard Somerville in Hamilton for a second opinion. He wanted an MRI done. The results, there were two screws pulled/loose from the rods in my lower spine L3-S1. So once again I would need to have major surgery. Mr Bohm sent me to see a Mr Howie at Ascot hospital in Auckland for a third opinion. His comments were that he would have gone two levels higher and used spacers. All of the above is on my ACC file Gym dates May 21 - 25 - 29 - 31 June 5 -7- 11 . July 5 - 10- 12 - 17- 19-25 -27 [23] Mr Peters submitted he should not have completed the Russian roll exercise as directed by the physiotherapist, given his injuries and the fixation screws in his lumbar spine. Mr Peters submitted the exercise caused the screws to loosen and the need for his subsequent revision surgery. Discussion [24] Mr Peters provided two folders and some 355 pages of information in support of his submissions which relate to his multiple claims in respect to injuries he has sustained since 1986. [25] The documents show Mr Peters visits to the physiotherapy clinic. The information from Mr Crouch, Physiotherapist, dated 19 May 2014 details the programme of exercises, including Russian rolls. This document does not stipulate what the year is, but there is a 2007 physiotherapy appointment list for the Te Ngae Road clinic which is not signed, which records appointments throughout May, June, July, August, September and October, and notes an adductor strain as at 29 May 2007. The assessment sheet for 25 May 2007 notes the various exercises undertaken but does not record an adductor strain. An assessment sheet of 21 May 2007 records Russian roll (limited) due to discomfort on walk outs'. [26] Whilst the injury claim form lodged by Dr Armstrong indicates the accident date of 1 October 2007, I observe the physiotherapy appointments document at pages 20 to 22A of Mr Peters' bundle of documents does not refer to this date. [27] Mr Peters has two claims in relation to physiotherapy using the swiss ball. Both the Injury Claim Form and the Treatment Injury Claim Form identify the same diagnosis of a muscle strain. Cover was accepted for a muscle strain following lodgement of the first injury claim form. [28] Mr Hlavac submitted the injury Mr Peters says he suffered, that is the pulling out of the spinal fixation screws, requiring corrective surgery in December 2008, was in fact covered by the Corporation, under the claim for a muscle injury strain, as it was causally connected to Mr Peters' original 2005 injury. Mr Bohm's letter of 17 December 2017 is clear that the pain felt by Mr Peters after the swiss ball exercises is not a new injury but related to his initial problem'. That is, the 2005 covered injuries. Mr Hlavac submitted Mr Peters was entitled to receive entitlements, including weekly compensation arising from the 2005 injury. [29] Whilst Mr Peters challenged the Corporation's letter of 14 July 2014, he did not lodge a review application against the decision of 27 March 2013 declining cover for a treatment injury, despite being advised to do so if he wished to challenge that decision. [30] In this appeal, I do not have jurisdiction to consider the treatment injury claim. It is the Corporation's letter of 14 July 2014 which Mr Peters has reviewed and comes to the District Court by way of challenge to the review decision of 19 February 2015. [31] Mr Peters contends that his Individual Rehabilitation Plan ("IRP") for the rehabilitation programme including physiotherapy was not approved by Mr Bohm. Further, Mr Peters submitted his x-rays of January, February and March 2007 had caused Mr Bohm to conclude that "everything looks good for the future'. Whilst that may be so, Mr Bohm's letter of December 2007 notes that he was aware of the pain suffered by Peters because of the swiss ball exercises and he considered no new injury had occurred. [32] The Corporation's letter of 14 July 2014 responds to Mr Peters' email of 14 April 2014 which stated: I would also ask you to require from Dr Peter Hunter (Hutt Processing Centre) his medical opinion of if he would have sent one of his clients to a RTW programme only after 5 months from major spinal surgery L3, 4, 5 and S1 with rods and screws either side of the spinal cord to undertake exercise that he would not use in his day to day work. Also the client was already back at work doing the heavy work that he did prior to his surgery, I await his reply. [33] I agree with the statement in the Corporation's letter of 16 April 2014 that the email from Mr Peters simply sought further comment from Dr Hunter. Moreover, the information provided by Mr Peters to Ms Temara in the Corporation in September 2014, is some two months after the letter of 14 July 2014. This fact reinforces the opinion that the letter of 14 July 2014 is not a new decision that is reviewable. [34] The letter of 14 July 2014 simply confirms the Corporation's earlier decision of 27 March 2013. On this basis, there is no jurisdiction to consider the letter of 14 July 2014 because it is not a reviewable decision.! Neither is the letter a new decision unless there is new material that requires a new decision. In Mathews' the High Court held that a new decision is not required when the same information seeks to achieve a different answer to the same question that had been addressed earlier. This decision followed the High Court decision in Waenga', canvassing the issue when a previous decision may be re-opened. The test is whether the claim raised some new matter which required the Corporation to address some new and different question from that which it had earlier considered, and did not rely on different evidence or information to achieve a different answer to the same question as had been earlier considered. Result [35] I conclude in this appeal that the Reviewer was correct to decline jurisdiction on the basis that the letter of 14 July 2014 which Mr Peters seeks to review did not constitute a reviewable decision. [36] Accordingly, the appeal is dismissed. Second Decision - Weekly compensation Background [37] Mr Peters received weekly compensation in respect to his 2005 covered injury which was paid continuously during the period 5 November 2005 until 1 January 2008. [38] Mr Peters turned 65 on 2 January 2006 at which stage he became eligible for New Zealand superannuateon. [39] On 11 December 2014 Mr Peters emailed the Corporation advising he wished to lodge a claim for weekly compensation for the period he sustained injury using a swiss ball. The Corporation's file shows that on 12 February 2015 Mr Peters spoke Butler v Accident Compensation Corporation [2004] NZACC 1 Matthews v Accident Compensation Corporation [2009] NZHC 593 Waenga v Accident Compensation Corporation [2006] NZAR 396. with Mr Kingston concerning this claim. The claim summary report by Mr Kingston of his discussion with Mr Peters records: Call to James and spoke to him regarding a case conference he had for a review on a treatment injury claim he had filed. Advised I had been asked to look into his request for weekly compensation on earlier covered injuries. James advised when asked he wished for weekly compensation based on an injury he sustained in 2007 whilst on a swiss ball - this is the treatment injury claim that he had filed. I advised that if that is the case, ACC cannot pay weekly compensation and in fact I cannot even consider it as the claim has been declined and that is what he is trying to review. Was not sure if James understood this however. Over the course of an hour CM and James tried to clarify the exact request he was asking for matters were getting confused over the multiple claims Peters had. Peters was adamant he wanted weekly compensation for an injury suffered in rehabilitation on a swiss ball which caused the need for further revision surgery. Upon looking on the ARTP I advised that does not appear to be the reason surgery was requested and differs to the opinion of the requesting surgeon which advised it was for non union. Peters was adamant however it was due to the rehabilitation and swiss ball activity. This conversation continued and James gave a history of his situation and aligns with ACC, which he advised has not been good. After a lengthy chat I brought James back to the question at hand [sic], his request for weekly compensation. I broke down a chain of events for James as follows. In 2007 he believes he sustained an injury during rehabilitation, 2008 he had revision surgery for lumbar fusion due to failed union (James advised this is due to his new injury he had), in late 2008 weekly compensation was ceased on this claim as he had reached the upper age limit for NZSQA. In 2012 James filed a TI claim and this was duly declined in March 2013. James then filed a review application in 2014 and following a case conference in 2014 we are here today looking at his request for weekly compensation Once again advised that as his request is for weekly compensation based on an injury filed for under the TI claim, I will have to decline this request as the claim has also been declined. James understood this. I advised his next steps will be to argue his point at review as to what he is trying to achieve at review which appears to be review of the decline decision or this is not exactly clear. [40] Following his conversation with Mr Peters, Mr Kingston wrote to Mr Peters to advise: Thank you for taking the time to talk with me today about your application for weekly compensation following a case conference. ACC has considered all the information available and finds that you are not entitled to weekly compensation because this claim has been declined therefore I am unable to assess your eligibility for weekly compensation. [41] Mr Peters lodged an application to review this decision. [42] The Reviewer dismissed the application on the basis that the claim for cover in relation to a treatment injury had been declined, and as that decision had not been challenged at review, there could be no entitlement to weekly compensation. The Case for Mr Peters [43] Mr Peters spoke to his written submissions of 24 September 2017 and stated in reply to Mr Hlavac's submissions that: (a) The respondent notes number 39 states that I would have been entitled to WEC. That is all that I am asking for but in all my dealings with ACC Rotorua this has been refused (b) I would also like to point out to Her Honour that following my revision surgery in 2008 I returned to work and I was helping one of my staff unload a large oven and there was a problem and I took the weight of a 1500kg oven to stop it from crashing on the ground. The result was that I suffered three x hernias and once again a long drawn out battle with ACC. I took ten months to get a review hearing and then ACC did not appear or contact the reviewer, I won but it took over two months to get approval for the operation and a further 9 months for WEC at a much lower rate. I did try and explain to ACC that I had three pre-operation exams and if there had been site of hernias present they would have been noted but ACC would not comment. I have only detailed the above as to show the problems that I have encountered with ACC Rotorua. Conclusion I would ask the Court to award WEC for the period covered by the revision surgery and if required I can supply the paperwork to prove what I have stated. Discussion [44] Mr Peters' stated at hearing that his reasons for pursuing his reviews and appeals is that he wishes to receive weekly compensation for the period he was unable to work following the corrective surgery carried out in December 2008. [45] Mr Hlavac submitted that Mr Peters incorrectly referred to the corrective surgery as involving a separate claim but it in fact relates to a claim lodged for injuries sustained on 24 October 2008 when he fell off the back of a truck. Cover was accepted for the multiple injuries which Mr Peters sustained. [46] Mr Hlavac submitted that if Mr Peters is seeking weekly compensation during the period following his surgery in December 2008 then such a claim might potentially be made on the basis that the corrective surgery was causally linked to his covered injury of 2005. [47] The difficulty is that Mr Peters turned 65 on 2 January 2006. At that time, he was receiving weekly compensation in relation to his 2005 injury and continued to receive weekly compensation until January 2008 when he turned 67. Mr Peters became entitled to weekly compensation before reaching 65 and had been entitled to it within 12 months before reaching that age, he was only entitled to receive weekly compensation for a further 12 months after turning 65, pursuant to clause 52, Schedule 1 of the Accident Compensation Act 2001 (the Act). Pursuant to clause 52(8), Mr Peters was then entitled to receive weekly compensation for a further 12 months on making an election to be entitled to weekly compensation, rather than to New Zealand superannuateon. In Mr Hlavac's submission, such an election was made by Mr Peters and accordingly he continued to receive weekly compensation until 1 January 2008. [48] For this reason, Mr Peters has no entitlement to receive weekly compensation in respect of his 2005 injury after 1 January 2008, and accordingly, no entitlement to receive weekly compensation following the surgery undertaken in December 2008. [49] For the sake of completion, and aside from the argument relating to eligibility to weekly compensation under clause 52 of Schedule 1 of the Act, there is no entitlement to weekly compensation for a treatment injury because Mr Peters does not have cover for a treatment injury. Entitlements follow cover pursuant to $67 of the Act. Result [50] Mr Peters seeks weekly compensation as a result of a treatment injury claim, I conclude the Reviewer was correct to dismiss this application because Mr Peters does not have cover for a treatment injury. It follows there can be no entitlement to weekly compensation for a non-covered injury. [51] Having reviewed the bundles of documents before me, and particularly the letter of 15 February 2008 from Ms Wearne to Mr Peters regarding his entitlement to weekly compensation given his attainment of the New Zealand superannuateon qualifying age of 65 years, there is no basis to provide weekly compensation to Mr Peters after 1 January 2008. [52] Accordingly, the appeal is dismissed. Summary of Results of both Appeals [53] In summary, both appeals are dismissed. There is no issue as to costs. Sense of - drove Judge Denese Henare District Court Judge Solicitors: Young Hunter, Christchurch, for the respondent ACR 275-15 Peters