Chambers v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION No. 212/2005 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal Nos. AI 659/02, AI 157/03 and AI 011/04) BETWEEN JOHN CHAMBERS Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 18 March 2005 Appearances: John Miller for appellant P A McBride for respondent Judgment: 18 July 2005 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] There are three appeals heard together. They involve four questions. Hernia claim. [2] This is an appeal from a review decision confirming the that the application was filed outside the three month time limit and was not saved by the “extenuating circumstances” proviso. The Corporation had declined a claim for cover for a left inguinal hernia. The reviewer, Mr S M Winter, in a decision dated 1 April 2003 held that there were no extenuating circumstances under s135(3) to allow the late review. The Reviewer said that none of the examples in s135(3) could even remotely apply. He commented that Mr Chambers had filed numerous applications for review with ACC in the past and it seems likely that he missed the time limit on this application simply due to inadvertence on his behalf and nothing more. Although he claimed at the hearing that he could not recall receiving ACC's letters of 5 July 2002 and 2 August 2002, the Reviewer was satisfied that he was aware of them. The Reviewer found no evidence of diminished responsibility decided there was no jurisdiction to hear the substantive appeal. [3] Since the Review decision, there have been some judgments in this Court which deal with aspects of interpreting s135(3). Relevant parts of the section are set out here for convenience: 135 How to apply for review (1) A review application is made by giving an application that complies with subsection (2) to the Corporation. (2) The application must - (a) be written: ….. (f) be made within 3 months of— ……. (ii) the date on which the Corporation gives notice under section 64; or …… (3) Despite subsection (2)(f) and (g), the Corporation must accept a late application if satisfied that there are extenuating circumstances that affected the ability of the claimant to meet the time limits, such as – (a) where the claimant was so affected or traumatised by the personal injury giving rise to the review that he or she was unable to consider his or her review rights; or (b) where the claimant made reasonable arrangements to have the application made on his or her behalf by an agent of the claimant, and the agent unreasonably failed to ensure that the application was made within the required time; or (c) where the Corporation failed to notify the claimant of the obligations of persons making an application. [4] In Williams (78/04), Judge Cadenhead said: [36] …. In the section under consideration here the general description of extenuating circumstances are fleshed out by the examples given. The ability of a claimant to meet the time limits might have been affected by his own personal injury, the actions or inaction of a third party, or the action or inaction of the Corporation in respect to the notification of the claimants obligations in making a review application. As I comprehend the statutory examples here are not to be construed as rigidly specific, but they provide pointers and guidance of what may constitute exculpatory instances. The use of the words ‘such as’ provides a flexibility of approach and underlines the examples given are not exhaustive. [37] Thus, it might be that mere forgetfulness of itself, given the absence of a causative traumatic disabling injury that could affect the decision not to review, would not be sufficient. Again, on the other hand, if the Corporation innocently represented a situation pertaining to the existence of cover, or as to the exercise of the claimant's obligations as to applying for a review, then that type of circumstances might amount to extenuating circumstances affecting the ability of the claimant. The body of precedent in this area should accrue incrementally upon a case by case basis against the statutory criteria, as is common with any developing or new area of the law.” [5] In Renata 170/04 extenuating circumstances were found where there was persuasive evidence that the appellant, who was not a resourceful person, was discouraged and despondent by the delay and lack of money. Cases of extenuating circumstances will depend on their own facts. [6] Mr Miller submitted that Mr Chambers has been hampered in his attention to the time limit for filing because of various pressures he has experienced. He has been made bankrupt, lost his business, suffered injuries, had major surgery and his wife has left him. Because of his voluminous correspondence with ACC it is difficult to keep track of what is filed and what is not. It is argued that the various pressures he has experienced have left him taxed his resourcefulness, in other words he is exhausted by stress and has not been able to cope with detail. Mr Miller submits that the appellant should not be regarded as a difficult claimant and in some way penalised for his persistent questioning of ACC decisions. Rather his personality and approach to compensation difficulties should be accepted as it is, and allowance made for extenuating circumstances in this individual case. [7] Mr Miller pointed to the mandatory wording, that “the Corporation must accept a late application if satisfied that there are extenuating circumstances”. The Commission does not exercise a discretion. It is required to decide a question of fact and degree, whether or not there are extenuating circumstances that affected the ability of the claimant to meet the time limits. So, it is submitted that s135(3) should not be rigidly applied, because it directs that relief shall be given in appropriate cases. Mr Miller submits that the Court should not be slow to recognise ameliorating circumstances in which a late application can be made. [8] Mr McBride submitted that the Reviewer was correct in finding there were no extenuating circumstances, but that there was only a case of omission. Furthermore, the appellant would have to show extenuating circumstances affecting the ability to bring the review in time, and this is not such a case. Mr McBride referred to an appeal from the Employment Court in GFW Agri-Products Ltd v Gibson [1995] 2 ERNZ 323, at page 330 where the Court of Appeal dealt with the scope of “exceptional circumstances” as an exception to the 90 day limit for a submission of grievance under s33 of the Employment Contracts Act 1991. Although the standard was higher under that legislation, the Court’s observation about the causative connection between the explanatory circumstances and the breach is relevant: ‘It is sufficient to comment that the legislature has provided for a time limit. That is a requirement of the law which is to be given effect and which cannot be abrogated by invoking equity and good conscience. Similarly, for the grant of leave an applicant must show exceptional circumstances having a causative effect upon the delay in submitting the grievance. The Legislature has set the burden at the high level by requiring that circumstances be exceptional and that must be given proper application. Further there is no formality or difficulty involved in notifying a grievance to an employer and failure to do so within 90 days generally will not be ‘occasioned by’ circumstances which, on a practical approach, have left reasonable time to secure any necessary advice and notify the grievance.” [9] The threshold test under the Employment Contracts Act was higher that “extenuating circumstances” under the Injury Prevention, Rehabilitation, and Compensation Act 2001, but the observation that the circumstances have to be causative is equally applicable. [10] Here there is no evidence that Mr Chambers had any impairment that would have affected his ability to respond to the time limit. In the absence of such evidence the Court has no useful insight into the appellant’s state of mind and cannot assume that he suffered a level of stress sufficient to justify the failure to apply in time. The decision that Mr Chambers wanted to review was made on 2 July 2002. The marital separation had occurred a year earlier, and the bankruptcy was in 2000. Mr Chambers lodged other review applications and he knew what had to be done. Mr McBride submits that the Reviewer was correct in finding that the cause of the delay here was simply omission by oversight. [11] There is no evidence of misleading circumstances as, for example, an exchange of correspondence that produced some confusion or made it difficult to identify the Corporation’s decision which had to be appealed. Part of the appellant’s submission is that the volume of correspondence brought about such confusion and difficulty as to sufficiently explain the delay. It is an invitation to infer that it must have been the case, because Mr Chambers would not knowingly have left a time limit pass. There are obvious reasons for the Court to decline the invitation to treat Mr Chambers as a special case of extenuating circumstances because of the volume of communication he has thought fit to maintain with ACC. [12] Mr Chambers was aware of the rules and was active in pursuing his complaints of error by the Commission. There is no evidence of any particular aspect of the correspondence “that affected the ability of the claimant to meet the time limits”. The explanation comes down to one of oversight. That is not enough to require the Corporation to accept the late application under s135(3). [13] This appeal is therefore dismissed. Hip Claim [14] This is an appeal from a review decision by Mr Winter on 9 December 2003. It concerns revoked cover on Mr Chambers’ left hip injury claim. Cover was granted on 31 May 2002 for an alleged injury suffered on 15 April 2002. The Corporation later decided that the decision had been made in error and revoked the grant of cover. The revocation decision was contained in a letter of 7 November 2002, stating that on reconsideration of the information available to the Corporation it was decided that the claim was accepted in error. The explanation given was that: “The medical information provided to ACC following your recent MRI scan states that there is no evidence of any personal injury caused by the event on 15 April 2002. The MRI scan has not confirmed the initial diagnosis made of your personal injury. The medical evidence available shows that you have osteoarthritic changes present in your left hip that have not been caused or contributed to by any accident. Section 26(2) and section 26(4)(a) of the Injury Prevention, Rehabilitation and Compensation Act 2001 exclude these osteoarthritic changes from cover. Therefore, I am revoking the decision of 31 May 2002. This means that your claim for cover is now declined ... ” [15] Mr Chambers immediately applied for review but was unsuccessful. The Reviewer said that Mr Chambers referred to two events on 15 April that might have caused an injury. One was a violent coughing episode during which he felt something in his groin pull with some pain. The other was when he climbed into the cab of his truck and reached around too far to get his seat belt. He felt something pull in his groin and some pain, which seemed to go after a while. [16] The Reviewer noted that the coughing episode or the twisting event may not have contained the necessary external force or resistance to constitute an accident, but the Reviewer considered that he did not have to decide that in view of the lack of evidence of personal injury. The Reviewer considered evidence whether there was a labral tear, and whether the described events could have caused such an injury. From examination of the medical evidence the Reviewer found that, at the most, the events in question simply aggravated a pre-existing non-accident related degenerative condition which then became symptomatic. [17] The first medical evidence of a possible injury was a note by Dr S Reid, General Practitioner of Sportsmed Canterbury on 6 June 2002, stating that he was suspicious of a “labral tear”. An ultrasound investigation was performed on 18 June 2002. Dr R Chisholm, Radiologist reported that “recent plain films have been reported as normal” and that: “There is irregularity of the anterior labrum of the left hip joint with an echogenic line extending through it suggestive of a tear. There was also a moderate sized effusion noted in the hip joint with slight thickening of the synovium.” [18] Following the ultrasound, Dr Reid then wrote on 1 July 2002: “Mr Chambers has sustained a labral tear affecting the left hip joint. At this stage it is unlikely that he will require surgical intervention. He is having some ongoing physiotherapy treatment, specifically aimed at relieving the injured part of the labrum. However moderation of activity, and time, are going to be important for this injury.” [19] At that stage there was evidence “suggestive” of a tear. Dr Reid did not record the signs of clinical examination which may have confirmed to him the existence of a labral tear. The evidence of a tear was inconclusive. There was no cogent opinion connecting the problem with an accident. [20] Mr Chambers saw Dr R Campbell, Sports Medicine Physician. In a note on 7 August 2002, Dr Campbell felt that the ultrasound confirmed the existence of a labral tear and he referred Mr Chambers to Mr P C Armour, Orthopaedic Surgeon, for expert management. [21] A medical report from Mr P C Armour, orthopaedic surgeon could not be located for the purpose of the appeal. The Reviewer’s record of it is sufficient. The Reviewer said: “Mr Armour (06/09/02) felt that Mr Chambers was ‘more likely to have an osteoarthritic hip than symptoms from a labral tear’. Mr Armour believed that his ‘trendelenburg gait pattern’ and a ‘restricted range of motion’ in his left hip were more in keeping with degenerative joint disease than a labral tear. Mr Armour indicate that even if he did have a labral tear then this could ‘be secondary to degenerative joint disease’. Later, Mr Armour (16/10/02) observed: I have reviewed the x-rays of Mr Chambers’ hip. They do not show any evidence of osteoarthritis. He has also indicated to be that in fact he has a hernia. It will be difficulty therefore to delineate which is the source of his problems, the hernia or hip. I think that more investigation is necessary and to this end a MRI scan will be the appropriate test of choice … The patient indicates to me that in fact there were three events occurring at the time he developed pain. The first was as documented in my own notes with a twisting injury to get at a seat belt in his truck. He also describes a coughing session and thirdly helping a builder lift a bay window frame. He feels that any one of these three events may now be the cause of his symptoms. Obviously any or all could possibly produce a hernia. It is a little more difficult to ascribe a hip injury to the mechanisms described. ... An MRI scan was subsequently carried out on Mr Chambers’ left hip. Dr T Goh, Radiologist (08/10/02) reported ‘osteoarthritic changes’ in his left hip joint although there was no discrete tear identified. Dr Goh felt that he was suffering from ‘mild-moderate osteoarthritis’ of the left hip joint and that the anterior labral intrasubstance signal was likely to be ‘secondary’ to osteoarthritis. [22] Dr Goh’s report of 8 October 2002 read: “FINDINGS: A moderate hip joint space effusion is present. There are osteoarthritic changes at the left hip joint with loss of articular cartilage superiorly and adjacent subchondral signal abnormality within the acetabulum. There is a small amount of intrasubstance signal within the anterior labrum but no discrete tear is identified. No paralabral cyst formation. There is no bone marrow oedema. The femoral head appears normal. No soft tissue collections are seen. No muscle abnormality is identified. IMPRESSION: 1. Mild-moderate OA left hip joint. 2. No discrete labral tear but anterior labral intrasubstance signal likely secondary to OA. Films double read by Dr Adrian Balasingam/Dr David Kerr.” [23] Dr Goh felt that Mr Chambers was suffering from “mild-moderate osteoarthritis’ of the left hip joint and that the anterior labral intrasubstance signal was likely to be secondary to osteoarthritis. [24] The Reviewer recorded that, during the long adjournment, Mr Armour on 5 October 2003 provided a follow-up report in response to specific queries raised by ACC. Mr Armour indicated that his examination on 6 September 2002 did not reveal any injury-related pathology/lesion in Mr Chambers’ left hip. Mr Armour said that the twisting event described by Mr Chambers had no bearing on his ongoing left hip pain. Mr Armour essentially put his problems down to degenerative joint disease and he did not believe that Mr Chambers had sustained any labral tear. Mr Armour stated: “The force applied to the hip joint and merely rotating would not be sufficient to cause damage to the hip, but has been sufficient to aggravate a pre-existing disorder ... The incident that Mr Chambers describes as taking place on 15.04.2002 and which he identifies the cause for his left groin symptoms in my opinion is due to the degenerative joint disease that has been identified on the MRI scan. I note in my own notes of 16.09.2002 that plain films did not show any evidence of osteoarthritis. However, having become much more familiar with hip pathology following my interest in surgical dislocation it is quite evident that plain radiology is exceedingly inaccurate in identifying infra-articular hip pathology. The plain films I feel were normal but the MRI scan and (sic) equivocally shows degenerative joint disease and this is the cause of this patient's ongoing disability. It is not the result of an accident ” ... [25] Dr Angela Harding, Medical adviser, Christchurch Branch ACC wrote on 7 November 2002, in an opinion based on examination of the records: “I have looked at the medical information on file. The ultrasound, which was initially performed showed a possible labral tear. The MRI, which is more accurate, did not confirm this. Interestingly the plain X ray did not show much in the way of degenerative changes but the MRI, which again would be expected to be more accurate, did. These changes would have taken a reasonable period to develop and could not have developed in the short four months since the accident. The report from Dr Campbell dated 23.10.02. confirms the presence of the degenerative changes in the left hip but also raises the possibility that the current symptoms may be coming from the hernia. I note that the hernia does not have ACC cover. I agree with your conclusion that there is no evidence that a physical injury occurred as a result of the accident.” [26] The Reviewer said: “In the final analysis, I am obliged to give considerable weight to the views of Mr Armour who was Mr Chambers' treating Orthopaedic Surgeon. Mr Armour did not feel that the described event(s) could have caused a hip injury and indeed no accident initiated lesion has been confirmed (apart from Mr Chambers' hernia which is the subject of a separate claim). Perhaps more importantly, Mr Armour attributed his left hip symptoms to ‘osteoarthritis’ and I find that the event on 15 April 2002 merely rendered the disease symptomatic. However, cover does not exist for the osteoarthritis as it is specifically excluded under section 26(2)-(4) of the Act. In my opinion, ACC was clearly correct to revoke cover on the basis that it did.” [27] I have quoted at length from the review because the original documents are not all available and the Reviewer carefully traced the medical opinions which began with a probable diagnosis of a labral tear. The diagnosis could not be confirmed because it was not supported by x-ray or imaging results. [28] Mr Miller submitted that there is no more than a conflict of specialists, so that it is not possible to say that there was not a labral tear as Dr Reid believed on clinical examination. [29] I accept Mr Miller’s submission that the Reviewer fell into error in finding the onus of proof to be on the appellant. There is an apparent duplication of the revision power given under both s65 and s390 of the 2001 Act, the latter being a transitional provision which is probably intended to apply to revision of decisions originally made under earlier Acts. The court needs to be satisfied that the decision was made in error, whatever the reason for the error. As Judge Beattie said in Smith (255/04), the onus is upon the Corporation to show that the decision in question was one which was made in error, while adopting the comment of Priestley J in Jackson v ACC (AP 404-96-01) that the question of onus in most cases which involve the consideration of medical evidence would be nothing other than an “arid and sterile exercise”. [30] This is one of those commonly encountered cases where there is clear evidence of osteoarthritic changes and where there may also be personal injury of less significance than the osteoarthritic or degenerative change. When a decision is to be reconsidered, the Corporation is faced with the question whether the evidence contradicts the correctness of the original decision, or whether it is more probable that the original decision was correct as to the occurrence of a covered injury, but that the injury was relatively short lived but ongoing symptoms were caused by the underlying disease condition. Those two possible conclusions are mutually exclusive. [31] In this case the Corporation has chosen to revise the decision that there was a labral tear. That requires proof of the probability that there was no such tear when cover was granted, so that the decision was made in error. Additionally, there was a question of causation. The decision was made on the basis that there was no evidence of any personal injury caused by an event on 15 April 2002. There is little evidence before the Court on the causation question, except Dr Armour’s comment that the force applied to the hip joint and merely rotating would not be sufficient to cause damage to the hip, but has been sufficient to aggravate a pre-existing disorder [32] Dr Reid’s opinion that Mr Chambers had sustained a labral tear was not supported by a description of clinical findings and it has little weight against the later imaging and Dr Armour’s conclusions drawn from it. Dr Goh found no discrete tear in the MRI on 8 October 2002. [33] I agree with the Reviewer that the persuasive evidence shows that there was no injury. The diagnosis of a labral tear has to be regarded as tentative and unsupported by further investigation. Furthermore, if there was a labral tear it was likely to be secondary to osteoarthritis and not able to be caused by the kind of twisting movement that Mr Chambers described. At best for the appellant there may have been a minor injury to support a claim for cover but not continuing entitlements. However that is not the question on appeal. It is clear that the main problem is a degenerative joint disease. The evidence is insufficient to show that Mr Chambers suffered personal injury namely a labral tear in April 2002. [34] The appeal is therefore dismissed. Asthma - date of incapacity [35] Mr Chambers was granted cover for occupational asthma on 6 August 1996. The disease was contracted in the course of his carpet cleaning business. The Corporation informed him on 29 August 1996 that the available information indicated that he first had an incapacity, and his condition was first diagnosed as being occupational asthma, in September 1994. The date of accident was then fixed at 28 September 1994. [36] Mr Chambers questioned the earliest date from which compensation could be paid. He wanted the claim backdated to 1989 when he said he was first affected and first suffered incapacity from employment. The Corporation’s decision was upheld on review and on appeal. Mr Chambers then brought another review on the same question. This appeal is from a decision by the Reviewer, Mr S M Winter, on 11 December 2002. Mr Winter said that the purported review was an attempt to relitigate a decision that had been disposed of in earlier decisions. [37] To return to the original ACC decision, the letter of 29 August 1996 stated: “However, if you wish to pursue backdating to the time you first experienced problems in 1989, you would need to provide confirmation that you both required and sought treatment for occupational asthma at an earlier date.” [38] That statement of the requirement for backdating was not correct. The claimant did not have to show that he “both required and sought treatment” at an earlier date. A claimant could show instead that he suffered a resulting incapacity at an earlier date. The relevant legislation was: 7 Personal injury caused by gradual process, disease, or infection arising out of and in the course of employment (1) Personal injury shall be regarded as being caused by gradual process, disease, or infection arising out of and in the course of employment only if - (a) In respect of a period that ended on or after the 1st day of April 1974, the employment task performed by the affected person, or the environment in which it was performed, had a particular property or characteristic which caused or contributed to that personal injury by gradual process, disease, or infection; and (b) The property or characteristic is not found to any material extent in the non-employment activities or environment of that person; and (c) The risk of suffering that personal injury is significantly greater for persons performing that employment task in that environment than for persons who do not perform that task in that environment. ……… (5) The date on which personal injury caused by gradual process, disease, or infection arising out of and in the course of employment is suffered shall be the date on which - (a) The person first received treatment from a registered health professional for that personal injury as that personal injury; or (b) That personal injury first resulted in the incapacity of the affected person - whichever first occurs. …….. [39] The advice from the Corporation that any backdating would depend on having received treatment was in error, but may have resulted from the fact that the information available to the Corporation did not suggest that an earlier date of actual incapacity was a viable alternative basis for this claim. [40] Incapacity was defined as follows: Incapacity means incapacity for employment; and includes absence from employment by reason of necessary health care treatment or service of a kind for which the Corporation is required or permitted to make payments either directly or indirectly (irrespective of whether or not it makes any payment in the particular case) in respect of personal injury covered by this Act: [41] The unsuccessful review of the Corporation’s decision was conducted on 26 March 1997. The Reviewer took into account various medical reports including a report by Dr Evans, Mr Chambers’ general practitioner. The Reviewer decided: “In my opinion based on my records I feel clinical asthma became apparent in September 1994. All chesty problems before that presented as chest infections which settled promptly with antibiotics alone. Therefore I feel ACC is being reasonable in establishing the date of clinical symptoms of asthma as 28 September 1994.” [42] Mr Chambers’ advocate, Mr Montgomery, submitted that the occurrence of incapacity in the first instance was considerably earlier than 28 September 1994. Mr Chambers described an occurrence in 1990 which he said was clear evidence of airway restriction, continuing over several days and resulting in severe debilitation. That was recorded by the Reviewer who then expressly rejected the claim that the incapacity occurred before 28 September 1994. She recorded that there was no sufficient evidence of incapacity before the first medical certificate on 19 August 1996, so that it followed that the first date of treatment was the correct date of injury. [43] Therefore, Mr McBride for the Corporation submits that as the matter has already been determined it cannot be reopened. Mr Miller for the appellant submits that the matter was only determined under s7(5)(a) of the 1992 Act and it is still open to decide whether an earlier date can be established under s7(5)(b) of the 1992 Act. [44] The 1997 Review decision was taken on appeal to the District Court. The appellant points to the decision of the District Court Judge and the submissions of the respondent’s counsel in Chambers v ACC (336/99) to show that the question of incapacity under s7(5)(b) of the 1992 Act was not before the Court. On the appeal Judge Middleton said in a judgment on 19 November 1999: “The only issue before the Court is whether section 7(5)(a) applies. There has been no evidence in relation to section 7(5)(b) so that is not an issue before the Court.” [45] There is a difference of view about why Judge Middleton made that comment. The appellant says that the comment was made on the basis that there had been no s7(5)(b) review and appeal, therefore the question was not before the Court. The respondent says that the comment was made because no argument was advanced on the appeal to support a claim under s7(5)(b) after it had been rejected by the Reviewer. [46] Leave to appeal to the High Court was granted. The High Court dismissed the appeal on 21 February 2001 (unreported, John Hansen J, Christchurch, AP36/00). That judgment dealt solely with the question whether Judge Middleton was correct in interpreting the date of treatment “for that personal injury as that personal injury” to mean that there had to be a relevant diagnosis, and that earlier general treatment for respiratory problems did not fall within the statutory provision. [47] Mr Miller submitted that counsel, Mr Corkill for ACC, in the earlier case accepted that the Corporation's decision and the review hearing were limited to the first limb - s7(5)(a), and that the Corporation had never been asked to look at s7(5)(b) and that it would have to be referred to the Corporation for proper inquiry. Mr Corkill later wrote a “circuit report” note to ACC in which he said: “ … there was an alternative argument relating to the second limb of s7(5)(b), but as that matter had not been the subject of a decision from the Corporation, nor considered on review, it was submitted that the appellant would need to lodge a de novo application in that regard with the Corporation. The appellant accepted that position.” [48] Mr McBride submitted that Mr Corkill’s report was a report to a client and was privileged. It is true that it would probably have been privileged as a document brought into existence in the course of advising a client concerning litigation. But the privilege seems to have been waived when the document was provided to the appellant. The circumstances are not clear. [49] In the review decision of 11 December 2002, Mr Winter said: “(23) … it seems to me that Judge Middleton’s observation that there was no evidence to support a finding on Section 7(5)(b) of the 1992 Act was just that. There was no acceptable evidence of prior ‘incapacity’ before His Honour and therefore it could not be realistically argued. Judge Middleton was clearly seized of determining the ultimate issue but only the first limb of Section 7(5) was being challenged for rather obvious reasons .. (24) It is interesting to note that in preparing submissions for the appeal before Judge Middleton, both representatives referred to the provisions of Section 7(5)(b) of the 1992 Act. And in that regard, reference is made to paragraph 6.1 of Mr Cadenhead’s submissions in which Counsel stated that ‘If it is found that the provisions of Section 7(5)(a) do not result in a change to the deemed date of accident, then it is submitted that pursuant to Section 7(5)(b) the 28th September 1994 deemed date should be an earlier date as the personal injury involved resulted in incapacity prior to that date’ and reference is also made to paragraph 3.4 of ACC’s submissions in which Counsel referred to Section 7(5)(b) and contended that ‘There is on file no medical certification that Mr Chambers suffered an incapacity for employment at a date prior to 28 September 1994’.” [50] The Reviewer went on to say that it was manifestly clear that both limbs were considered at review and in ACC’s primary decision of 29 August 1996. [51] Concerning the res judicata bar, the practical extent of the estoppel depends on clear prior determination of the same issue between the same parties. As Judge Cadenhead put it in M v ACC 319/03 that “if there is ambiguity or uncertainty as to what was decided by the previous decisions, then a party is not precluded from raising that issue. It is upon the party alleging the previous decision or concluded issue, to prove that what is subsequently raised falls within the parameters of the earlier decision or issue.” [52] The respondent now submits that, while the question of an earlier incapacity date was not considered at the appeal stage, it had clearly been decided by the Reviewer and is res judicata. [53] After examining all the material, I agree with the Reviewer that Mr Corkill’s circuit note was evidently wrong in stating that the s7(5)(b) question had not been the subject of a decision from the Corporation nor considered on review. I accept the respondent’s submission that the question has been decided, and it would therefore follow that the circuit report contained an error. [54] The circuit report and Judge Middleton’s decision can be looked at in another way, that is to say that there was simply no plausible evidence of actual incapacity earlier than 28 September 1994 and the Court did not occupy itself with the question but left it for Mr Chambers to seek a further decision from the Corporation if he could. It appears quite clear that if counsel had put the issue before the Judge to decide, Mr Chambers would have failed on that point. [55] The respondent’s position now is that the point is res judicata. The argument may be refined to state that that any rights reserved to Mr Chambers through the deliberate omission in the District Court to decide the s7(5)(b) question were not intended to improve his position, but to leave him to pursue it if he could. Whether or not he could actually do so depended on whether the question had been validly decided against him at review. The respondent contends that it was decided against him at review, and it cannot be taken further unless he can produce evidence to persuade the Corporation to issue a new primary decision. The appellant submits that it was not decided at any level. [56] For the sake of completeness I mention that there is a new report of 22 June 2004 by Dr Timothy Christmas of Auckland Respiratory & Sleep Service. Dr Christmas examined medical notes and a summary from Dr Richard Evans. In June 1990 Mr Chambers had 4 to 5 days of coughing green sputum. Dr Evans reported that the chest was clear and prescribed a course of antibiotic. Notes in June and August 1992 were “cough and sputum” and “a chest infection”. In December 2003 Dr Evans recorded “cough and difficulty breathing and a peak flow reading of 380” relieved by Ventolin. Dr Christmas considered that those notes were consistent with upper respiratory tract infection and were unlikely to be an asthma attack, whereas admission to Christchurch public hospital on 27 October 1994 was for airflow obstruction likely to be an asthma attack. Dr Christmas commented that a claim of having suffered an asthma attack when travelling to Venezuela in December 1990 was not documented and depended on Mr Chamber’s own assertion. [57] I find that the question at issue has been finally decided between the parties. The circuit report overstated the position. The 1997 Reviewer’s rejection of the claim for a date of incapacity earlier that the date of first treatment is clear. Mr Chambers had presented the available evidence, which consisted of his own sworn testimony, and the claim to establish a date of injury on that basis was rejected by the Reviewer. It would have been futile to advance the point on appeal, so it was not argued and the Court did not deal with it. The point is now barred because it was the subject of a valid review decision. If Mr Chambers had more persuasive evidence available he would have to ask the Corporation to review the position and to issue a new decision based on fresh evidence. [58] This appeal is therefore dismissed. Debt repayment [59] This concerns a claim of $48,460.54 which the Corporation raised against Mr Chambers for repayment of overpaid weekly compensation. The reason for overpayment was a shift in the first date of incapacity from 19 August 1996 to the earlier deemed date of injury on 28 September 1994. At the earlier date, Mr Chambers’ income as declared in his income tax return was less than in the 1996 year. Recalculation in 2002 reduced the weekly compensation over several years. Details were provided to Mr Chambers in a spreadsheet. [60] There has been no argument in this appeal about the amount of the debt. The review and the appeal were argued as a question of remitting all or part of the debt under s251 of the Act. Mr McBride for the Corporation submitted that the question of remitting the debt was not addressed in the review notice or the appeal notice. The notice of appeal stated “I dispute I have a debt with ACC of $48,460.54”. Mr McBride referred back to the application for review form lodged with ACC on 12 November 2002, stating that Mr Chambers took issue with a decision of 5 September 2002 because "I dispute that I have been overpaid $48,460.54 and that I am not entitled to weekly compensation". [61] The decision refusing to remit the debt was a decision letter of 7 November 2002 after the Corporation had received a statement of assets and debts, income and expenses from Mr Chambers. The Corporation then wrote advising that it would not remit the debt. No review application was lodged referring to that 7 November 2002 decision. Mr Miller submitted that that the outcome should not be dictated by questions of form when the essence of Mr Chamber’s complaint was that he should not be required to pay. [62] In the course of three decisions on this matter, the Reviewer decided that ACC's actual debt recovery/remission decision was not made until 7 November 2002 when the Corporation advised Mr Chambers that it considered he had not altered his position. The Reviewer considered the remission question. He found it undisputed that Mr Chambers did not intentionally contribute to the debt and that he received the payments from ACC in good faith. The only question that remained to be decided was the question under s251 of the 2001 Act, that Mr Chambers had so altered his position in reliance on the validity of the payment that it would be inequitable to require repayment. [63] The Reviewer recorded that Mr Chambers spent the money from overpayment on mortgage or debt repayments ($20,000.00), house renovations ($15,000.00 - $11,000.00 for repairs and $4,000.00 for paint), computer purchase ($3,500.00), with the balance being utilised on everyday life expenses and some business costs. The Reviewer considered that Mr Chambers did alter his position in reliance on the validity of the overpayment(s) as far as it related to the house renovations, and thought it inequitable for ACC to demand repayment of the said $15,000. The debt was thereby reduced to a repayable balance of $33,460.54. Jurisdiction [64] In the circumstances I think the appeal should be treated as an enquiry into the remission question. That is the way that matter was dealt with at review. A generous interpretation of the review and appeal applications, as they were filed, could view them as an objection on a broad front, to the fairness of refusing to remit as well as to the calculation of the debt. A claimant should not be unreasonably or unfairly defeated by lack of formality in the composition of review or appeal applications where the intention of the application is clear. In this case the Reviewer readily decided that the intention of the review was to address remission under s251 of the Act and proceeded in that way. There is no record of protest to that course by the Corporation’s representative. The proper course for this Court is to accept that the Reviewer correctly assumed jurisdiction on the basis of the evident intent of the review application and the consent of the parties in dealing with the review as a s251 question. [65] The Reviewer referred to decisions in Moffett (179/99) and Carter (288/2002) which did not accept daily living expenses as a basis for remitting part of a debt. In relation to routine expenditure the Reviewer said: (27) I find that the balance of the debt as mentioned in the preceding paragraph cannot attract relief in law and that it is recoverable by ACC. There is no alteration of position when a claimant spends the overpayment(s) on everyday living expenses (Foss (30/2000), Herewini (159/2000), and Houma (42/2001)), or existing mortgage repayments/deductions (Jones (219/98), Healey (61/2002), and CBA (346/2002)) or normal business debts etc (Royal (141/98) and Healey (supra)). [66] Since then, Miller J in Estate of Karl v ACC (unrep. High Court, Wellington, CIV 2004-485-800, 9 September 2004) has clarified that expenditure on daily living can be a relevant alteration of position. Miller J said: [47] I find that expenditure on daily living may involve an alteration of position in reliance on validity of an overpayment. It may involve a conscious course of action, and the money is used in a way that creates no asset the defendant can use to repay ACC. Alteration of position may take the form of failure to claim other state benefits to which the defendant would have been entitled but for the overpayment. The defendant may be able to point to financial commitments assumed in reliance on validity. It is also possible that the defendant can show that, but for a belief in validity, the money would have been dealt with in a way that made it possible to repay. While the burden of proof rests on the defendant, the Court must recognise that it may be unrealistic to expect the defendant to produce conclusive evidence: Philip Collins (above at p.827), Scottish Equitable (above at paragraph 33). [67] The transcript of the review hearing discloses that Mr Chambers stated his assets as a $40,000 half interest in his home. He had separated from his wife and owed her a debt of $17,000. He said that he had no vehicle or furniture worth anything. He had paid $20,000 of his mortgage and had spent $15,000 painting the house and repairing rotten timbers. Other than that he had bought a computer and spent some money travelling and staying in Wellington. [68] Repayment of part of the mortgage amounted to replacing a mortgage debt with a debt to the Corporation and did not amount to an alteration in position. [69] The money was paid in early 2002 in respect of earnings compensation dating back to 1996. Mr Chambers would have regarded it as a catch up of income which he could apply to expenditure that he would not otherwise have been able to afford. In that way, his house maintenance was a reasonable application of part of the money and it was then no longer available to him when the demand was made for repayment. He did not explain what motivated him to travel to Wellington, but it is easy to infer that it was in reliance on the validity of the payment. He just did not have money for that kind of outlay. The purchase of a computer was also out of his reach but for the availability of accumulated funds from the Corporation. In my view, some allowance should be made for those two items. They caused an alteration of position and it would be inequitable to put the impecunious appellant into the position of having to use the meagre equity in his home to repay the money. [70] By the time the demand was made, the computer should still have had some value, perhaps half its cost. The evidence of the Wellington trip is vague. Mr Chambers should be relieved of the burden of repaying that part of the debt arising from expenditure which is lost to him, which he cannot repay and which he would not have incurred but for the belief that he was entitled to the money. The full cost of the two items is $4,500. Deductions should be made for the second hand value of the computer at the time the demand was made for repayment of the money, and for that part of the Wellington travel and accommodation cost which he would have been able to meet from his own resources. Only a rough apportionment is possible, and a fair amount is half the total. [71] Therefore the appeal succeeds to the extent that the recoverable part of the debt is reduced by a further $2,250. [72] The appeals have been dismissed except to that limited extent. The appellant will have costs of $1,500, awarded solely for the reason that Mr Chambers engaged Mr Miller who was able to assist the Court by clarifying the issues out of a mass of material which would otherwise have caused much more difficulty. Signed at Wellington on 18 July 2005 Judge D A Ongley District Court Judge