Strickland v Accident Compensation Corporation

IN THE DISTRICT COURT AT NAPIER [2015] NZACC 348 ACR 427/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN L STRICKLAND Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 2 November 2015 Appearances: Mr Grove for the appellant Ms S Churstain for the respondent Judgment: 16 November 2015 RESERVED JUDGMENT OF JUDGE DENESE HENARE [1] This appeal arises by way of a review decision of 1 July 2013 upholding the Corporation's decision of 26 March 2013 declining jurisdiction to accept Ms Strickland's late application for review. By a separate decision also dated 1 July 2013, the reviewer determined the 1 November 2012 letter which prompted the out- of-time review application does not constitute a decision. [2] The issues for determination in the appeal are twofold, whether the Corporation's letter of 1 November 2012 is a decision and whether extenuating circumstances apply to the late lodgement of the review application. [3] The substantive matter which Ms Strickland seeks to pursue is cover for a treatment injury due to ear syringing. A claim was lodged on behalf of Ms Strickland on 5 October 2012. The difficulty in this case, as I indicated at the hearing, is that the claim for cover through medical misadventure, either through medical error or medical mishap has already been decided on appeal by Judge Ongley in a decision dated 20 April 2009' which dismissed the appeal. A subsequent leave to appeal application was lodged and dismissed by Judge Beattie on 3 May 20122. The Case for Ms Strickland [4] Mr Grove submitted the decision of Judge Ongley dealt only with medical mishap and not medical error. Therefore Mr Grove submitted, a claim for medical error was made on 5 October 2012. Mr Grove submitted the Corporation's letter of 1 November 2012 declined to make a decision, on the basis it was a duplicate claim. [5] Mr Grove submitted Judge Ongley's decision confirmed two different treatment issues existed of which only one was subject to the appeal, as confirmed by Judge Beattie in his decision dismissing the leave to appeal application. Issues 6] The issues in the appeal are: [i] Whether the Corporation's letter of 1 November 2012 is a decision; and [if] Whether there are extenuating circumstances for late lodgement of the review application. Issue One - Whether the Corporation's letter of 1 November 2012 is a Decision [7] This issue is to be considered within the meaning of s6 of the Accident Compensation Act 2001 (the Act). If the status of the letter is a decision then it is amenable to review under s 134(1)(a) of the Act. [8] Consideration of the Corporation's letter of 1 November 2012 letter shows as follows: [i] It noted Ms Strickland's claim for a treatment injury lodged by Dr Eastcott for pain and altered sensation following ear syringing; 47/2009 N 155/2012 [ii] Explained that the same issue has already been considered and a decision issued on 12 August 2005 under the medical misadventure criteria; [iii] Confirmed the claim is a duplicate of a previous claim and no new decision was issued; and [iv] It did not provide for review rights. [9] Mr Grove referred to various paragraphs in the decision of Judge Ongley which he submitted made it clear the issue of medical error had not been considered. I pointed out to Mr Grove at the hearing, that in my opinion his view of Judge Ongley's decision is incorrect and that Judge Ongley did consider the two limbs of medical misadventure. It is clear that Mr Grove is concerned about the status of Judge Ongley's decision. However, any issues in respect to Judge Ongley's decision together with the leave to appeal decision of Judge Beattie, were not subject to further appeal. [10] I accept Ms Churstain's submission that it is irrelevant that Dr Eastcott tried to lodge a claim as medical error because that issue had already been decided. I conclude the status of the letter of 1 November 2012 is not a decision and, as a result, there is no basis for a deemed decision providing cover for medical error, as submitted by Mr Grove. [11] If I were to find extenuating circumstances exist, the appeal is moot because the 1 November 2012 letter simply confirmed a duplicate claim had been lodged with the Corporation. The substantive matter has already been addressed in a decision of 12 August 2005 which was upheld at review, dismissed on appeal, and in the leave to appeal decision of Judge Beattie. Issue Two - Whether there are extenuating circumstances for late lodgement of the Review application [12] Having concluded there was no deemed decision, the question is whether the Corporation was correct in declining to accept the late application for review. [13] Section 135 of the Act provides the steps to be taken and the timeframe within which those steps must be taken to pursue a review application. In Jensen v ACC Judge Joyce QC stated: [19] The general thrust of the cases on these previsions is that an appellant must be able to demonstrate extenuating circumstances affecting the ability of the claimant to meet the time limit - in other words circumstances that are particularly pertinent to the period allowed on that account. [14] In considering whether there are extenuating circumstances, the following principles apply: For the claimant to succeed there must be a causative link between the alleged extenuating circumstances and the claimant's ability to meet the time limits; While the focus is on the three month period before the time limit expires, circumstances outside this timeframe can be relevant; and . The Court is confined to determining the review decision and there is no jurisdiction to consider the substantive decision. [15] Mr Grove made plain that he did not lodge an application for review within the three month timeframe and contacted the Ombudsman's office. Mr Grove submitted he chose this option because the 1 November 2012 letter did not contain review rights. [16] This difficulty, as identified by Mr Grove, underlined the fact that a decision by the Corporation had not been made which was reviewable. A submission with which I agree. On that basis, however, even if Mr Grove was unsure whether the 1 November 2012 letter was a decision or not, he could have lodged the application for review in time in order to challenge the position. He chose another avenue instead. (2014] NZACC 006 See Gregory v ACC [2013] NZACC 409, Clerk v ACC [2013] NZACC 191 and Kistasamy v ACC [2014] NZACC 002 [17] The evidence before me is that there was a great deal of contact between Mr Grove and the Corporation during the three month period in question and I do not find that extenuating circumstances have been made out. There is no evidence (medical or otherwise) to support the submission that Mrs Strickland was unable to deal with the question of review. The position is that another avenue to explore the issues was chosen and there was a disregard both of the statutory timeframe and the need to file the application for review, no matter that Mr Grove was uncertain. Conclusion [18] In summary, I conclude for the reasons stated above: [i] The letter of 1 November 2012 is not a decision and correctly stated that the claim lodged on 5 October 2012 was a duplicate claim; and [ii] There are no extenuating circumstances for late lodgement of the review application. Result [19] The appeal is accordingly dismissed. Hecave Judge Denese Henare District Court Judge ACR 427-13-Strickland (vjr)