Milne v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND WELLINGTON REGISTRY [2011] NZACC 141 Al 210/06 IN THE MATTER of an intended appeal under s. 162 of the Accident Compensation Act 2001 BETWEEN KATHLEEN ANN MILNE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent BY CONSENT HEARD ON THE PAPERS DATE OF THIS DECISION |2 May 2011 APPEARANCES The appellant on her own behalf Mr A D Barnett, counsel for ACC DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The Issue [1] The appellant seeks leave to appeal against a decision of Judge M J Beattie given on 6 September 2010 ([2010] NZACC 154), and referred to further below, on the ground that "the appellant has cover for mental injury suffered because of physical injuries she has suffered". [2] On 7 June 2005, ACC had declined to grant the appellant weekly compensation on the ground that any inability for her to continue in employment was not as a consequence of her covered injury of hearing loss and tinnitus. ACC contended that there is no evidence of incapacity of the appellant within the meaning of the Act. [3] In a comprehensive decision, Judge Beattie dismissed the appeal. He stated in his penultimate paragraph: '[30] Looking at the factual circumstances relating to incapacity as I must from the snapshot of time, namely 9 November 2004, when the Appellant ceased employment, I find there is no sufficient evidence to satisfy the evidentiary test that on the balance of probabilities the Appellant was physically unable to 2 continue in her work as a flight attendant because of her covered injury of hearing loss and associated tinnitus". Discussion [4] Pursuant to s. 162(1) of the Act, the appellant is only entitled to leave to appeal to the High Court on questions of law. It is settled law that the contended point of law must be capable of bona fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues of fact to be dressed up as questions of law, as appeals on the former are proscribed. However, a mixed question of law and fact is a matter of law, and a Judge's treatment of facts can amount to an error of law. [5] Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course. [6] I accept that an error of law will arise where the Court has misinterpreted or misapplied a statutory provision; where there is no evidence to support a decision; where the evidence is inconsistent with, or contradictory to the decision, or the true and only reasonable conclusion on the evidence contradicts the decision; where a decision is wrong in principle, or where a decisionmaker has failed to take into account some relevant matter, or has taken account of an irrelevant matter; and where the Court has rejected evidence without a clearly articulated and rational basis for doing so. [7] The appellant has filed two lots of nicely hand-written, and detailed, submissions to support her application for leave to appeal to the High Court. [8] As well as reminding me of the background covered by Judge Beattie, she has detailed how the effect of tinnitus has adversely affected her enjoyment of life and given her much pain. For instance, she cannot listen to music, nor relax, read, study, nor sleep properly, and suffers a heightened sense of noise. She is generally very stressed and cannot enjoy work. She is also suffering from depression, anxiety, and similar symptoms. The appellant also reviewed the medical evidence which Judge Beattie had extensively covered. [9] The basic facts are that the appellant was aged 61 at the time of ACC's said decision of 7 June 2005. She had commenced employment with Air New Zealand as a flight attendant back in 1972. Although she ceased flying in October 2003, she remained employed in an administrative capacity on the ground. She lodged a claim for ACC cover in respect of noise-induced hearing loss and tinnitus in April 1986 as first suffered by her in January 1983. ACC accepted cover for that work-related personal injury but, other than treatment costs, no claim for weekly compensation was ever made by the appellant during that employment, which was terminated in November 2004 on the basis that she was unfit to fly as from August 2004. [10] Accordingly, on 8 February 2005, the appellant applied to ACC for weekly compensation. However, ACC investigated matters and concluded that her employment had been terminated due to psychiatric problems, and not because of any hearing disability, and accordingly declined weekly compensation. Of course, there has been extensive medical evidence which Judge Beattie thoroughly reviewed and clearly took into account. In his paragraph [24] Judge Beattie states: 3 "[24] I am satisfied from the medical evidence that the Appellant voluntarily ceased active service as a flight attendant in October 2003 by reason of factors wholly unrelated to any hearing/tinnitus problems and those factors were identified as being those of chronic anxiety and an adjustment disorder and with depression ..." [11] In his paragraph [26] Judge Beattie notes that there have been a number of reports from appropriate medical specialists and not one of them has opined "that the then present nature of the Appellant's hearing loss and associated tinnitus was a condition which was incapacitating. Whilst the various Specialists have referred to the need for devices to assist the Appellant, no one had said that her hearing loss was such that she can no longer safely carry out her flight attendant's duties." [12] ACC opposes the appellant's application for leave to appeal to the High Court and puts it there is no question of law capable of serious and bona fide argument. [13] The appellant has cover for noise-induced hearing loss and tinnitus associated with her employment with Air New Zealand. That employment was terminated in November 2004 and, in February 2005, the appellant applied for weekly compensation on the basis of a claimed incapacity to undertake her employment with Air New Zealand due to her covered tinnitus and hearing loss [14] Judge Beattie detailed the evidence and made a finding of fact when he concluded that he is satisfied on the medical evidence that the appellant voluntarily ceased active service as a flight attendant in October 2003 by reason of factors wholly unrelated to any hearing/tinnitus problems. Those factors were identified as chronic anxiety and an adjustment disorder with depression. [15] In seeking leave to appeal, the appellant states that it is made on the grounds of "mistakes of fact or law" and says she has cover for mental injuries suffered because of physical injuries. However, the appellant has not proved entitlement to cover for mental injury or mental consequences from her tinnitus and hearing loss, nor yet endeavoured to. [16] To date, the appellant's claim for weekly compensation has been advanced on the basis of a claimed incapacity due to her tinnitus and hearing loss; in particular, her tinnitus. Only now, in applying for leave to appeal to the High Court, does the appellant advance the claim on the basis of an alleged mental injury consequent upon a covered physical injury. I agree with Mr Barnett that it is not now open to the appellant to advance an entirely new ground. There can be no error on the part of Judge Beattie in respect of an issue which was not before him. [17] There was evidence before Judge Beattie of the appellant suffering mentally, in particular suffering chronic anxiety and insomnia relating to adjustment disorder or post traumatic stress disorder. However, it was not asserted that this was the consequence of the covered physical injuries. [18] The appellant does not have an accepted claim for cover for any mental illness. Her cover for hearing loss and tinnitus was accepted under the 1982 Act so that there could, potentially, be cover for "any mental consequences of any such injury". However, it has never been previously claimed that the mental illness which the appellant suffers is a "consequence" of the covered physical injury. I understand 4 ACC would not accept that and would oppose such a claim. To the extent that there was any evidence about the appellant's mental illness before the Court, it was suggested that her symptoms of anxiety and insomnia were associated with bullying in the workplace. [19] As Mr Barnett submits, the short point is that the appellant does not have cover for any mental injury as a consequence of her covered physical injuries. This means that the ground upon which the appellant now relies, in seeking leave to appeal, does not arise from Judge Beattie's decision, and there is no basis for leave to appeal. [20] There is no serious and arguable question of law arising from Judge Beattie's decision. Accordingly, the application before me is dismissed. Judge P F Barber District Court Judge WELLINGTON Al 210-06.doc(aw)