Wylie v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 038/2004 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to Section 152 of the Act BETWEEN MARY NIRA WYLIE of Mt Eden Appellant (Appeal No. AI 501/00) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE J. CADENHEAD ON LEAVE TO APPEAL [1] The appellant has applied for leave to appeal to the High Court against a decision of His Honour Judge M.J. Beattie dated 21 March 2001. [2] The issue in this appeal is whether a question of law should be stated to the High Court, wherein Judge Beattie said at paragraph [22] of his decision: “The question that the issue in this appeal raises as one that requires determination largely by the medical evidence, and it is on the basis of that medical evidence that the Court applies the law. In the case of this appellant the medical evidence is that the personal injuries for which she had been granted cover are no longer to be considered as causing any incapacity. In those circumstances the law which is applicable states that weekly compensation is not an entitlement which the appellant cannot continue to receive. [23] The reviewer was correct to limit the suspension order to the question of weekly compensation as any other entitlements under the Act to which the appellant https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/038- 2004.doc AE may have been eligible need not necessarily stand or fall on the criteria of incapacity or not.” [3] As His Honour said in his decision, the medical evidence was overwhelming to the effect that the incapacitating features of the accident injuries had now resolved, and the appellant was to be regarded as having largely recovered from those injuries, and they were not a cause of any inability to perform her pre-accident employment tasks. [4] Briefly, by way of background, the appellant had suffered injuries to the upper and lower back, as well as the right ankle following a bicycle accident on 1 March 1996. The appellant received cover for the injuries and received weekly compensation, as well as other entitlements under the Act. [5] In April 2000, the appellant was assessed by Mr Brian Otto, Orthopaedic Surgeon. Following the receipt of this report, the respondent issued a decision on 19 June 2000 suspending the appellant’s entitlements pursuant to s.116 of the 1998 Act. The appellant applied for a review of that decision. [6] At the review, the reviewer upheld the respondent’s decision, but modified the decision to the extent that only the appellant’s entitlement to weekly compensation was suspended. [7] The medical evidence given before the District Court was Mr Otto, Dr Campbell (the applicant’s general practitioner), and Dr Gavaghan, occupational medicine specialist. [8] In order for the appellant to be entitled for leave under s.165 of the 1998 Act, the appellant must raise a question that is wrong in law. The point of law must also be capable of bona fide and serious argument (see Impact Manufacturing Co v ARCIC unreported, High Court, Wellington, AP 266/00, 6 July 2001 – Doogue J). The Appellant’s Grounds for Leave to Appeal [9] The appellant acts for herself, and has set out her grounds for leave to appeal in a letter dated 6 February 2004. 038-2004 2 [10] To a large extent, this letter raises questions of disputed fact, and I cannot see any substantial matters of law in the letter that should be properly determined by a further appeal to the High Court. The fact that the appellant disagrees with the decision is not necessarily a ground for a further appeal. Like counsel for the respondent, I have had difficulty in identifying precisely what the grounds for a further appeal put forward by the appellant are. [11] I have read the letter setting out those grounds of appeal, taking into account that the appellant is a lay person, and giving to that letter from the appellant’s perspective the best interpretation that I can place upon it. Decision [12] I am of the view that the matters raised in the letter are either irrelevant or at best disputed questions of fact. In those circumstances, the appellant does not meet the criteria required for stating a further issue of law for consideration by the High Court. I refuse leave to appeal, and there will be no order as to costs. DATED at WELLINGTON this …….8th …… day of ………March….….. 2004 (J. Cadenhead) District Court Judge 038-2004 3