Butler v Accident Compensation Corporation (Application for Costs)

IN THE DISTRICT COURT AT WELLINGTON [2018] NZACC 74 ACR 300/16 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN MARTIN BUTLER Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 12 April 2018 Appearances: The appellant in person F Becroft for the respondent Judgment: 17 May 2018 RESERVED JUDGMENT OF JUDGE JH WALKER Directions on Review s 145(4) Accident Compensation Act 2001 s 148 Costs on Review] [1] Mr Martin Butler is the appellant in these proceedings and the Accident Compensation Corporation ("The Corporation") is the respondent. [2] This is an appeal pursuant to s 149 of the Accident Compensation Act 2001 "the Act"). 3] This appeal relates to a decision made by the Corporation on 22 January 2016 and reissued on 11 February 2016 declining cover for cervical spine degeneration, under claim 10001574787. [4] A subsequent review decision by Reviewer Woodhouse, dated 5 August 2016 quashed the Corporation's decision and issued a direction that the matter be referred back to the Corporation to make the decision again. Background [5] As stated in the submissions of Ms Becroft, this is a complex claim which involves multiple personal injury claims and accidents dating back to 19 July 1996, when Mr Butler was involved in a motor vehicle accident ("the 1996 claim"). [6] The issue in this matter is an appeal filed by Mr Bulter in respect to a review decision dated 5 August 2016, arising from a primary decision by the Corporation, dated 11 February 2016, declining cover for spinal degeneration. [7] In addition to this claim, declined by the Corporation, Mr Butler has cover for the following injuries relating to his neck, suffered on: . 18 May 2001. . 27 November 2002. . 7 September 2007 ("the 2007 claim") and 7 September 2012. [8] The decision made by the Corporation on 11 February 2016 states that the Corporation cannot accept cover for Mr Butler's cervical spine degeneration under claim 10001574787 which related to the accident of 7 September 2007, where the covered injuries were a lumbar disc prolapse, and pain in lumbar spine. [9] The Corporation decision of 11 February 2016 states: We also cannot cover your cervical degeneration on claims C1333427011; C133427007 and 10020853950. [10] As a result of the 2007 claim Mr Butler received weekly compensation commencing in February 2008. [11] Subsequently, the process of vocational independence was undertaken with a decision on 21 October 2010 by the Corporation, determining that Mr Butler had achieved vocational independence. [12] Mr Butler applied for a review of this decision. [13] This decision, upheld on review, was appealed. The appeal, heard on 16 July 2013 before Beattie DCJ, was allowed. [14] As stated above Mr Butler also made a claim in respect of the 1996 motor vehicle accident. This was investigated by the Corporation and on 20 January 2012 the Corporation declined the claim on the basis they were "Unable to establish the appellant had injured his back in the accident described". [15] This decision was unsuccessfully challenged by Mr Butler on review and although appealed, the appeal was withdrawn on 15 May 2012. [16] It is noted by Ms Becroft, that in the interim, Mr Butler was assessed by several physicians, both in relation to his ACC claims and the public health system. The focus of the enquiry was a disc prolapse at Co that had been identified in an MRI scan. [17] These medical reports were chiefly around the cervical spine. Mr Wickremesekera reported on 7 June 2012 diagnosing a cervical C6/7 disc prolapse with ongoing degenerative changes evident on the MRI scan from 10 May 2011. [18] In addition, on 11 April 2013, Dr Rajapaske, diagnosing a chronic pain syndrome as a direct result of the July 2007 accident. [19] There were continued issues around the Corporation investigating Mr Butler's backdated entitlement to weekly compensation, including further medical reports and a BMA review of the file in October 2013. [20] In late 2014 Mr Butler queried the Corporation's progress regarding his neck issues and on 9 October 2014 the Corporation sent a referral to Boulcott Hospital for a medical case review in relation to his neck symptoms. The referral letter asked the specialist to consider what the cause of the appellant's cervical spine issues were, and included a list of covered cervical injuries occurring on: . 3 July 1993. 8 January 1997. 18 May 2001. . 27 November 2002. . 3 March 2005. . 3 February 2006. . 7 September 2007. 8 November 2011. 7 September 2012. [21] Mr Oakley, orthopaedic surgeon, undertook an extensive medical case review on 6 January 2015. [22] On 12 May 2015 Mr Beck wrote to the Corporation noting that nothing had happened since Mr Oakley's January 2015 assessment. He noted Mr Oakley identified that the cervical spondylosis was traumatic and that Mr Butler needed a pain service referral. [23] Subsequently, a comprehensive pain assessment was undertaken by the Corporation in August 2015. [24] The Corporation sought BMA advice as to whether Mr Butler should be covered for the cervical pathology. Dr Drewry, senior medical advisor, reviewed the file on 17 December 2015, concluding that there was insufficient medical evidence to show a causal link between Mr Butler's cervical spine condition and the accident. [25] As noted, On 22 January 2016, the Corporation issued a decision declining cover for cervical spine degeneration in respect to the September 2012, September 2007, November 2002 and the May 2001 claims. [26] This appears to have been reissued on 11 February 2016 with a Decision Rationale dated 9 February 2016. [27] On 1 April 2016 Mr Butler applied for a review of that decision. The Review [28] It is noted that the review proceeded on 26 July 2016 before Mr Woodhouse, Reviewer, and his decision was issued on 5 August 2016. [29] One of the concerns of the Reviewer was the lack of reference in the primary decision to the 2005 claim. The Reviewer also commented on the fact that no formal claim for cover had been lodged in respect to cover for cervical spine degeneration, and accordingly it made it "very difficult to know what to consider the claim was against". After considering the position of both parties and enquiring from Ms Becroft why only four of Mr Butler's covered injuries were considered in the decision the Reviewer set out, under the heading "Discussion", his concerns arising from the evidence. These included: How that decision came about, is unusual. Mr Cahn submits that the assessment of Mr Butler with Mr Oakley, and the Corporation's subsequent decision, was an own motion process. That is, that no claim for cover was lodged which set the assessment process, and decision making consideration in motion. [30] The Reviewer stated: Ordinarily, claims for cover are lodged by the claimant via their treatment provider, such as a general practitioner. [31] The Reviewer referred specifically to s 48 of the Act relating to claims for cover and entitlement, and s 52 of the Act as to procedure. [32] The Reviewer expressed concern that is was difficult to know what to consider "the claim" was against. In addition, what injuries the assessment should be measured against, and on what decision they were based. [33] The Reviewer stated that failing to be clear was a flaw in the Corporation's decision. [34] The Reviewer also stated that he saw it as no problem that the Corporation undertook a medical case review with Mr Oakley in such a complex case. He saw it sensible to review a person with an open mind as to what the problematic pathology may be, and what could have caused that pathology. [35] The Reviewer refers to particular conclusions reached in Mr Oakley's assessments. First, the changes in Mr Butler's neck, which were more likely to be post traumatic, rather than non-accident related causes. Secondly, it would seem to be difficult to be precise over the causative events. Mr Oakley considered the most likely accident events to be relevant would be the motor vehicle accident in 1996, and the accident of 3 May 2005. 36] The Reviewer also expressed surprise that although the claim file by Mr Butler in respect to the 1996 vehicle accident had been declined, the Corporation, having received Mr Oakley's report which supported injuries to Mr Butler in 1996, did not proceed to reconsider whether it's decision to cover the 1996 accident was correct. The Reviewer stated: ... That is especially in light of the comments made by the earlier Reviewer, Ms Anderson, which confirmed that the Corporation could revisit its decision should new medical evidence be presented I have been unable to determine why the Corporation has not considered whether the 2005 accident may have been causative of the degenerative pathology for Mr Butler, as Mr Oakley considered that accident event of relevance. . . A further difficulty faced in relation to determining what the claimed injury is, relates to the fact that the Corporation only makes reference in its decision to changes at C6/7. Again it is not clear to me why the Corporation has done that. The evidence establishes pathology in Mr Butler's neck more widely than simply C6/7. Even Mr Oakley states that if anything, the changes are centred around two levels, being C5/6 and C6/7. I cannot see why at the very least, the Corporation did not consider whether cover could be provided at the upper vertebral level. [37] It is on this basis that Reviewer Woodhouse issued his directions: For the reasons as set out above, I find that the Corporation's decision cannot stand. The decision is quashed, and I return this matter to ACC to make the decision again, on the basis of the following directions: (1) The Corporation should at the very least, confirm whether it stands by the decision declining cover for the neck injury in 1996, on the basis of the new opinion presented by Mr Oakley. I make no directions however as to whether that injury should be covered one way or the other, or any process the Corporation should make in terms of considering whether to maintain its position there. ( 2 ) The Corporation should obtain confirmation from Mr Butler, via Mr Beck, what personal injuries Mr Butler is seeking cover for. (3) ACC must reconsider whether cover can be provided for the personal injuries which Mr Butter seeks to obtain cover, on the basis of all of the covered injuries for the applicant. The Corporation may wish to receive medical advice on that matter should it wish, but ultimately a decision should be issued to Mr Butler which carries a fresh right of review should Mr Butler disagree with it. Position of the Appellant [38] Mr Butler filed submissions in respect to the appeal and also addressed the matter at the hearing. [39] Mr Butler confirmed that he did not disagree with the reviewer's decision per se, to quash the decision of the Corporation, dated 11 February 2016, but that the Corporation had not implemented the Reviewer's directions. [40] At the time of filing his initial submissions (these are undated on the file) he states: The ACC has not provided me with a new decision since Mr Woodhouse issued the Decision of the Review Hearing 5" August 2016, hense refusing to comply with the Review Hearing Decision by Mr Woodhouse leaving me no other avenue for progress than to lodge this appeal. [41] He refers to the first direction of the Reviewer's decision. The Corporation in fact issued a further decision dated 31 October 2016. This reads: Claim for cover as a result of 1996 Motor Vehicle Accident ACC have been directed by the reviewer to clarify whether ACC will make a new decision for cover under this claim. We have considered all medical evidence held on file relating to your neck injuries and have not found any reason to overturn the decision made 20 January 2012 declining cover for your neck injury. If you provide any further medical information in the future relating to this matter we will consider it. [42] Mr Butler confirmed at the appeal hearing that no review of the decision of 31 October 2016 had been filed by him. [43] Subsequently, he advised there had been correspondence with the Corporation relating to the second and third directions. The letter, dated 3 November 2016, between Mr Butler and the Corporation stated: Direction two is required to be completed prior to ACC being in a position to further reconsider cover as per direction three. In order for ACC to consider cover under the third direction you will need to confirm the diagnosis of the personal injury you are seeking cover, as per direction two. ACC will then reconsider the injury within the context of the third direction. You may wish to discuss the diagnosis of your neck injury with your GP at your next consultation. [44] Mr Butler states in his written submissions: My case manager, Oliver Digby immediately ignored the directions contacting me directly demanding I provide claim numbers I sought cover for, not as Mr Woodhouse had ordered through Mr Beck, Mr Digby altered the directions of Mr Woodhouse by removing the numbers and attempting to ignore the first order made by Mr Woodhouse, that being reconsider cover for the 1996 injury, something that logically needed to happen first hence the order Mr Woodhouse had made directions in. [45] Mr Butler referred to Mr Digby's letter to him and stated: Mr Digby ... altered the Decision ... by adding a complete paragraph into the Decision claiming I now am required to provide a complete diagnosis that I am seeking cover for. This is in no way something that Mr Woodhouse ordered in the Decision. . . . It is ludicrous to expect a complete diagnosis when making a claim, a comprehensive diagnosis is something that is progressed after a claim is made with the comprehensive examination and diagnostic tests that would follow. [46] He also states that the Corporation was provided with the specific claim numbers in terms of directions on 25 November 2016, being: C1333427002, C1333427007, C1333427011, C10024945192, C1333427693, C10020853950, and C1333427693. He states: .. the ACC have not shown that they are even investigating any of the claims I provided them with as they are required to do in a timely manner. The ACC have not requested an extension to the time allowed for making a Decision ... [47] Mr Butler also addressed concerns in respect to the review decision as to the reasoning. He mentioned that the Reviewer had been influenced in the position put forward by Mr Cahn that the matter before the review officer arose from the Corporation's "own motion process". [48] He stated this was a further deliberate misdirection by the Corporation as to the events that led to the review. [49] Mr Butler also referred to the lengthy apology issued by the Corporation on 22 February 2016, shortly after the review decision, along with an admission on 19 February 2016 as to incorrect information provided by the Corporation, which led him to being denied access to treatment. [50] Mr Butler clarified it was not the decision of the Reviewer that he was appealing, but the lack of the Corporation complying with the directions imposed by the Reviewer and the delay in respect to this. [51] Mr Butler referred to the front page of the review decision (p145 of the bundle of documents) which states: Outcome I have returned this matter to ACC to undertake further investigation, and then issue Mr Butler a fresh decision. Directions have been set out below, but in summary the Corporation must confirm what Mr Butler seeks cover for (the personal injury), and then consider Mr Butler's case on the basis of all of the covered personal injuries. [52] Mr Butler's submission is that this specifically directed the Corporation to undertake a further investigation which had not occurred. [53] Mr Butler also referred to the fact that the new decision, which was ultimately produced by the Corporation on 3 August 2017, included an additional claim number relating to his mental health claim, which was not part of the decision-making process. [54] The letter of 3 August 2017 states: Thank you for your patience while we investigated your claims further, following the directions set out in a review decision dated 5 August 2016. ACC has been investigating whether you are entitled to cover for the pathologies present in your cervical spine. The medical evidence obtained by ACC confirms a diagnosis of multi-level cervical spondylosis. ACC does not consider there to be sufficient evidence supporting a causal link between the cervical pathology present and any of the claims identified above. The claims considered, include accidents which occurred on 3 July 1993, 19 July 1996, 18 May 2001, 27 November 2002, 3 March 2005, 7 September 2007 and 7 September 2012. We're therefore sorry to say we can't approve cover for your cervical pathology. [55] Mr Butler confirmed that he had applied for a review of the decision arising from this letter, and was awaiting a time for the hearing of this review. Position of the Respondent [56] As noted, Ms Becroft, in her written submissions provided a comprehensive coverage of all of Mr Butler's applications. [57] This included a hip injury Mr Butler contends arose in addition to cervical issues related to his 2007 claim. [58] Ms Becroft states his claim had some support from Dr Kanji, who had identified a labral tear and linked it to the 2007 claim. [59] On 1 February 2017 the Corporation issued a decision deeming cover in relation to the right hip lateral tears when it realised it had not complied with the legislative timeframes for issue in a cover decision. Cover was approved from 12 October 2016. However, on the same day, 1 February 2017, the Corporation revoked the deemed decision. [60] Subsequently, Mr Butler, applied for a review of that decision and that review hearing is still pending. [61] Ms Becroft refered to matters subsequent to the review decision of 31 October 2016. She noted that subsequent to the receipt of the review decision Mr Butler had written to the Corporation's Customer Feedback Team in relation to the review decision. [62] Ms Becroft states in her submissions:: 2.86 The Appellant clearly disagreed with the Corporation's interpretation of the review decision, in particular the need for him to specify the cover sought, because on 25 November 2016, the Appellant emailed the Corporation's complaints service again and advised "There is no mention [in the review decision] of my responsibility to supply anything other than the personal injuries that I am seeking cover for". [63] Ms Becroft notes that the complaint was not upheld. She continues: 2.88 It appears that thereafter the Appellant's focus turned to the appeal as a vehicle for channelling his discontent with the way the Corporation had approached the Reviewer's directions. 2.89 In the meantime, the Corporation has arranged for a comprehensive review to be undertaken by Mr Phillips, orthopaedic surgeon - an appointment had tentatively been booked for September 2017. [64] My questioning to Ms Becroft as to this tentative appointment with Mr Phillips indicated that this had not occurred. [65] Subsequently the Corporation issued its decision on 3 August 2017 (See para [53] above). [66] Ms Becroft's submissions in these proceedings relate to the decision made on 11 February 2016 by the Corporation, and the Reviewer's decision including directions in respect to compliance and other matters raised. Ms Becroft submitted that the directions made by the Reviewer would of necessity, be the subject of the more recent appeal that Mr Butler has made in respect to the decision letter of 3 August 2017. Discussion and Conclusion [67] The starting point is review decision made by Reviewer Woodhouse. Section 145(4) of the Act sets out the ability of the Reviewer to make directions. This states: s 145 Review decisions: substance . . . (4) If the reviewer quashes the Corporation's decision, the reviewer must- (a) substitute the reviewer's decision for that of the Corporation; or (b) require the Corporation to make the decision again in accordance with directions the reviewer gives. [68] In this matter the Reviewer has elected to quash the Corporation's decision based on the matters set out in his decision (see para [37] above). [69] Pursuant to s 145(4)(b), the Reviewer also issued directions, requiring the Corporation to make the decision again. [70] It is accepted by both parties that the Reviewer's first direction has been complied with. [71] A later decision was made and Mr Butler has confirmed that the new decision is not intended to be the subject of any review. [72] The second direction stated: The Corporation should obtain confirmation from Mr Butler, via Mr Beck, what personal injuries Mr Butler is seeking cover for. [73] At the time of the review hearing Mr Beck was Counsel for Mr Butler. (74] In the Claim Summary of 6 September 2016, Mr Digby emailed Mr Butler referring to the fact that Mr Butler had requested medical evidence that supports the claims made by the Branch Medical Advisor, specifically that the degenerative change which showed on the lumbar MRIs would take years to develop. [75] It is noted in the letter that Mr Butler had also requested documents relating to how the contracting of Mr Drewry was managed, and seeking a full copy of all claim files into his recent review. [76] Mr Digby states: Can you please confirm whether I can expect to hear from Mr Beck about your cervical injury as per the directions from review 4637090 or have you withdrawn his services completely. If this is the case please specify what injury you are seeking cover for? [77] It is accepted that Mr Butler replied confirming reference to the claim numbers as being the information he believes was being sought. [78] Ms Becroft indicated at the hearing there may have been some misunderstanding in this respect as to specifically what was required. [79] Further correspondence from the Corporation to Mr Butler is somewhat more direct. [80] On 21 August 2016 Mr Butler received an email from Mr Digby, Case Manger, stating: You may recall that Mr Woodhouse offered three directions in his decision for review 4637090. - ACC is to confirm whether it stands by its decision declining cover for your neck injury ... - The Corporation should obtain confirmation from Mr Butler via Mr Beck what personal injuries you are seeking cover for. - ACC will need to issue a new decision that will cover a fresh right of review. Mr Woodhouse's opinion was that it was inappropriate for ACC to consider cover when no injury claim was formally made on your part. For this reason I need you to confirm what cover you are seeking as per Mr Woodhouse's second direction. As you have indicated that Mr Beck no longer represents you then you will need to confirm this directly with myself. ... You will be aware that I have requested from you to confirm what injury you seek cover for on multiple occasions since the review so I look forward to your cooperation in this matter so we can move forward with the directions of Mr Woodhouse. [81] In respect to the wording of the third direction of Mr Woodhouse, I do not accept, as has been submitted by Mr Butler, that this places a mandatory duty on the Corporation to undertake a specific investigation or action. [82] I find, in fact, the wording of the third direction indicates a discretion rests with the Corporation as to whether it wishes to obtain further medical evidence on the matter. [83] It is noted also that the Reviewer refers to the personal injuries of Mr Butler "on the basis of all the covered injuries for the appellant". [84] This may well be the reason why the additional claim number was noted in the decision ultimately made by the Corporation, which does not have direct relevance to Mr Butler's physical injury. [85] I accept the submission of Ms Becroft that the time for that enquiry, as to what steps the Corporation may or may not have taken as a result of this third direction, is not for the subject of this appeal. 86] I find however that this appeal is not directed at an exercise as to whether the Corporation made a decision in accordance with the directions of the Reviewer, although it is acknowledged that this appeal appears to have arisen out of some frustration perceived by Mr Butler, as to the delay on the Corporation's part. [87] It should be noted however, that the Reviewer's directions do not contain any information as to time in which the Corporation is required to reissue a decision. 88] It is also noted that s 145(3)(d) of the Act does have a timeframe to be specified by a reviewer, but there is no similar provision in terms of's 145(4)(b). Conclusion [89] In conclusion, Mr Butler filed his notice of appeal, first in writing, and then in the format provided, and he refers to some perceived process errors made by the Reviewer which was not, in fact, the case. [90] I do not find this error has any substance. [91] Nor is Mr Butlers appeal an application to quash the review decision. His appeal is in respect to the delay in the Corporation implementing the Reviewer's directions. [92] Nor do I find that there is evidence that the Corporation deliberately misdirected the Reviewer. [93] Although the decision letter of 11 February 2016 refers to cervical spine degeneration, this was not the cover that was sought in the 2007 accident. It is noted that the Corporation has now issued a new decision and Mr Butler has applied for a review. [94] It is accepted that the medical reports, included Mr Oakley's report, widened the ambit of possible causation, which was an issue the Corporation was prepared to give consideration to. [95] Now that a new decision by the Corporation has been issued in terms of the Reviewer's decision, this appeal is effectively a nullity. [96] Mr Butler was also seeking review of costs on the review hearing on the basis that no provision was made by the Reviewer for ongoing costs. [97] Pursuant to s 148 of the Act, I find however, the Reviewer has no jurisdiction to award costs of that nature. [98] It is noted in the present proceedings Mr Butler has not had the benefit of legal representation. [99] Accordingly, the application for appeal is dismissed. [100] There is no issue as to costs. Judge J H Walker District Court Judge Solicitors: Medico Law, Auckland, for the respondent ACR 300-16-Butler