Osborne v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT CHRISTCHURCH [2019] NZACC 17 ACR 216/17 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION UNDER SECTION 162 OF THE ACT FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW BETWEEN NEIL OSBORNE Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the Papers at Auckland Judgment: 19 March 2019 DECISION OF JUDGE G M HARRISON [1] Mr Osborne appeals against a decision of Judge Christiansen of 7 September 2018 in which the Judge upheld the decision of the Reviewer that the Corporation was correct to cancel Mr Osborne's entitlements because there was no evidence to support his contention that his ongoing pain was related to the accident which occurred on 1 1 March 2014. [2] The appeal was referred to Judge Henare who issued a minute on 16 October 2018 directing that submissions should be filed by specified dates and that the application for leave would then be determined on the papers. Those submissions were duly filed and the issue for determination is whether any question of law has been identified which should be referred to the High Court. 2 3] The facts are set out fully in the Judge's decision. Essentially on 11 March 2014 Mr Osborne suffered an injury to his right shoulder when feeding wood into a chipper at work. He was assessed as fit for work in late July 2014 and obtained work as a bus driver on a casual basis from November 2014 until June 2015 when that employment ceased, owing to insufficient work hours. [4] Numerous medical assessments then followed, all of which are detailed in the decision. [5] The general medical opinion was that there was no evidence to support the claim that Mr Osborne's incapacity was due to any covered injury. (6] Mr Osborne's entitlements were suspended by the Corporation on 26 October 2016, and Mr Osborne sought a review of that decision which led to the appeal. [7] At [33] the Judge said: Dr Hilliard's report in September 2016 was detailed. He concluded that any effects of the covered injuries were long since been spent. Most recently received was the report of Dr Robinson. It is apparent from all of these reports that there is little medical evidence to support Mr Osborne; that it appears the injury for which he had cover has been resolved and that there was a proper basis for ACC to engage s 177 to cancel entitlement. The evidence appears sufficient to conclude that his covered injury has resolved and therefore he is "no longer unable, because of his ... personal injury, to engage in employment which he ... was employed when he suffered the personal injury" (s 103 of the Act). [8] In his submissions in support of his application for leave Mr Osborne said: I believe in order for entitled ACC to be stopped it must be three assessments in a three month timeframe. Not over years. There are too many papers for me to go through to figure it out. I just believe its wrong to force someone with a injury to return to a job which puts people's life's at risk due to them being relying on medication to kill the pain. But I only remember one assessment before entitlement was cut. I'm sure that three are required by independent doctors. [9] In counsel's submission in opposition to the application for leave, the following appears: [52] In his email of 4 November 2018, which presumably is the document in support of the application for leave to appeal, no question of law is 3 identified. Mr Osborne submits that he believes that ACC needs three assessments in a three month timeframe in order for weekly compensation to be stopped. There is no such legislative provision to that effect and as far as counsel for the Corporation is concerned, no such protocol [10] In Accident Compensation Corporation v Stanley, Heath J summarised what is meant by an appeal only on a question of law. At [34] he said: An appeal cannot be regarded as being brought on a question of law where the fact finding court has merely applied law which it has correctly understood to the facts of an individual case. Provided that the court has not overlooked any relevant matter, or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding court, unless clearly unsupportable. [11] It was further held by the Court of Appeal that "issues of fact should not be dressed up as questions of law; appeals on the former being proscribed - Northland Co-operative Dairy Company Limited v Rapana [1999] 1 ERNZ 361, 363." [12] It is quite clear in this case that the Corporation, the Reviewer and the Judge had extensive medical evidence which confirmed that the pain of which Mr Osborne complains was not caused by the injury he sustained on 11 March 2014. To determine whether the pain now being experienced was caused by the injury is a question of fact. All of the medical opinion presented in evidence confirmed that the injury did not cause the pain. [13] No question of law requiring reference to the High Court has been identified, and as a consequence the application for leave to appeal is dismissed. There is no issue as to costs. District Court Judge