HEMMINGS V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2009-485-1790

HEMMINGS V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2009-485-1790 17 March 2010IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV-2009-485-1790IN THE MATTER OF An intended appeal under s 162 of the Injury Prevention, Rehabilitation & Compensation Act 2001 BETWEEN NEVILLE HEMMINGS Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 24 February 2010 Counsel: A C Beck for the Applicant H A Evans for the Respondent Judgment: 17 March 2010 at 10am I direct the Registrar to endorse this judgment with a delivery time of 10am on the 17th day of March 2010.RESERVED JUDGMENT OF MACKENZIE J[1] This is an application for special leave to appeal to this Court, under s 162(3) of the Injury Prevention, Rehabilitation, and Compensation Act 2001, against a decision of the District Court. [2] The applicant suffered a back injury in 1997 which was accepted for cover under the Accident Rehabilitation and Compensation Insurance Act 1992. On 6 May 2002, the respondent (ACC) issued a decision terminating the applicant's entitlements. That decision was upheld on review. The applicant appealed to theDistrict Court. That appeal was not heard until November 2007, 1 and was dismissed in a judgment delivered on 24 December 2007. Leave to appeal was sought from the District Court. Leave was refused in a judgment dated 21 August 2009. This application for special leave was filed on 9 September 2009. [3] An appeal under s 162 is confined to an appeal on a question of law. The test for the grant of leave is that stated by Doogue J in Impact Manufacturing Limited v ARCIC.2 The applicant must show an error of law capable of bona fide and serious argument that requires to be resolved in the interests of justice. The applicant submits that that test is met here. Counsel submits:22. The [applicant's] case is that the District Court Judge erred in law in the following respects: 22.1 By failing to apply the statutory test for exclusion from cover. 22.2 By failing to take into account all the relevant evidence relating to the physical cause of the [applicant's] pain. 22.3 By rejecting the evidence of Dr Borowczyk without a proper basis. 22.4 By misinterpreting the report of Mr Finnis, and reaching an incorrect conclusion on the issue of causation.[4] It is not appropriate, on this application for leave, to embark upon a lengthy description of the facts, or on a detailed discussion of the merits of the proposed appeal. The issue is whether there is a sufficient question of law. A brief description of the relevant facts is all that is necessary for a discussion of that issue here. [5] The applicant was diagnosed with a disc prolapse at L4/5 following his back injury in 1997. Surgery was recommended, and was approved by ACC in December 1997 but was not carried out until June 2000. ACC obtained a report from Dr Xiong on 15 March 2002. In that report he expressed the opinion that the applicant's impairment and symptoms in the low back were caused substantially by degenerated changes rather than injury related factors. Following a request for clarification Dr Xiong, in a report dated 29 April 2002, said that it would be very difficult to1 Hemmings v Accident Compensation Corporation HC Dunedin 267/2006, 21 November 2007.2 Impact Manufacturing Limited v ARCIC HC Wellington AP266/00, 6 July 2001.attribute a percentage figure in terms of pre-existing degeneration against injury related trauma. He said that he would regard the degenerative changes as the underlying causes for more than 85 per cent of the applicant's current medical impairment and in his opinion there was very little contribution from the injury related trauma. [6] In a letter to the applicant dated 6 May 2002 the applicant was advised: "With respect to your back injury ACC has determined that you no longer have entitlements for this injury ". Reference was made to s 10 of the Accident Rehabilitation and Compensation Insurance Act 1992. That section provided, for the avoidance of doubt, that personal injury caused wholly or substantially by gradual process disease or infection is not (with some limited exceptions) covered by the Act. [7] The applicant sought a review of that decision and obtained an opinion from Dr Borowczyk. He expressed the opinion that the applicant's current state was a direct consequence of his original injury and resulted in secondary changes with the effect of the disc continuing to give particularly intractable chronic pain. In a review decision delivered on 16 September 2003 the reviewer found that the burden of proof rested with the applicant and that that onus had not been discharged. The application for review was accordingly dismissed. As that decision was given in 2003, the reviewer, in finding that the burden of proof rests with the applicant, did not have the benefit of the decision of this Court in Ellwood v Accident Compensation Corporation.3[8] On the applicant's appeal to the District Court, Judge Beattie noted that s 10 of the 1992 Act, referred to in ACC's original decision of 6 May 2002, was not in any way applicable. The Judge adopted the pragmatic approach, in accordance with the submissions of both counsel, of treating ACC's decision as a decision to suspend or cancel an entitlement under s 117 of the 2001 Act, rather than as the revision of the original decision in 1997 to grant cover and entitlement. The Judge reviewed the3 Ellwood v Accident Compensation Corporation [2007] NZAR 205.medical evidence which had been before the reviewer. He also had the benefit of a further report received from Mr Finnis, a neurosurgeon, dated 17 April 2007. [9] The first alleged error of law as set out in [3] is that the Judge failed to apply the statutory test for exclusion from cover. Mr Beck submits that the onus resting on ACC to show that termination was justified required ACC to establish, on the balance of probabilities, that the applicant's ongoing condition was caused "wholly or substantially by the ageing process" in terms of s 10(2) of the 1992 Act. He further submits that it was necessary for ACC to exclude the possibility that any degeneration was a consequence of trauma; that the Court did not identify the cause of the degeneration present in the applicant's spine, and that it is seriously arguable that the statutory test was not satisfied. [10] Cover for the 1997 injury is governed by the 1992 Act. The applicant's injury, a L4/5 disc prolapse, was accepted by ACC for cover. The question of possible exclusion under s 10, on the basis that that injury had been caused wholly or substantially by gradual process, did not arise. The appeal, as the Judge identified, was as to the correctness of ACC's decision of 6 May 2002 cancelling entitlements. The Judge described the grounds for that decision as being that the applicant's ongoing back problems were not attributable to the covered injury but were wholly or substantially attributable to degeneration and the ageing process. A key question was whether the problems from which the applicant was suffering in 2002 were still a consequence of the 1997 injury or whether those problems were the result of a gradual process of degeneration resulting from age or other cause than the injury. [11] Judge Beattie approached the matter on the basis that the relevant question was whether ACC had correctly exercised a power to suspend or cancel an entitlement under s 117 of the 2001 Act. In dealing with that question, the Judge discussed and applied the decision of this Court in Ellwood v Accident Compensation Corporation. He said:[28] This Court now must look at the evidence in the light of the test required of it as set out in Ellwood, namely is the evidence clear to the effect that the Corporation could say that it was not satisfied that there was a right to continued entitlement. As Justice Mallon said, if the evidence is unclear or uncertain, that test cannot be met.[29] The matter which the Corporation required to be not satisfied about in the case of this appellant was that his ongoing lower back problems were attributable to the back strain injury consisting of the prolapsed disc which he suffered in April 1997 and which was the covered injury.[12] I consider that there is not a seriously arguable question as to whether that was a correct formulation of the issue. That is to say I consider that no arguable error of law, sufficient to satisfy the test for the granting of leave to appeal, arises in respect of the application by the Judge of the relevant statutory provisions, in that formulation of the issues. [13] The next three alleged errors of law set out in [3] all relate to the way in which the Judge dealt with the evidence, and his findings based upon the evidence. Counsel for the applicant submits that, in holding that the applicant's condition was attributable to the advancing of the degenerative processes which have brought about advanced spinal stenosis, the District Court effectively concluded that, because there was some evidence of degeneration the applicant's condition could not possibly be covered as personal injury. [14] The circumstances in which a question of law may arise in such a case are set out by the Supreme Court in Bryson v Three Foot Six Ltd in these terms: 4[25] An appeal cannot, however, be said to be 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. It is for the Court to weigh the relevant facts in the light of the applicable law. 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 it is clearly insupportable. [26] An ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law: proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs "in which there is no evidence to support the determination" or "one in which the evidence is inconsistent with and contradictory of the determination" or "one in which the true and only reasonable conclusion contradicts the determination". 26Lord Radcliffe preferred the last of these three phrases but he said that each propounded the same test. In Lee Ting Sang itself the Privy4 Bryson v Three Foot Six Ltd [2005] 3 NZLR 721.Council concluded that reliance upon dicta of Denning LJ in two cases "of a wholly dissimilar character" may have misled the Courts in Hong Kong in the assessment of the facts and amounted in the circumstances to an error of law justifying setting aside concurrent findings of fact. Their Lordships were of the opinion that the facts pointed so clearly to the existence of a contract of service that the finding that the applicant was working as an independent contractor was, quoting the words of Viscount Simonds in Edwards v Bairstow,"a view of the facts which could not reasonably be entertained", which was to be regarded as an error of law. In Lee Ting Sang the facts demonstrated so clearly that the applicant was an employee that it was the true and only reasonable conclusion. [27] It must be emphasised that an intending appellant seeking to assert that there was no evidence to support a finding of the Employment Court or that, to use Lord Radcliffe's preferred phrase, "the true and only reasonable conclusion contradicts the determination", faces a very high hurdle. It is important that appellate Judges keep this firmly in mind.[15] As to the submission that the Judge failed to take into account all the relevant evidence relating to the physical cause of the applicant's pain, Mr Beck submits that it is seriously arguable that Judge Beattie erred in law by failing to take into account the evidence of Dr Borowczyk and Mr Finnis as to the causal chain of events resulting in the ongoing back pain suffered by the applicant. Judge Beattie did discuss their evidence. He noted that Mr Finnis was reporting in support of a claim for surgery at L2/3. He made a specific factual finding that there can be no basis for contending that any disc disruption at L2/3 is accident related. I consider that the proposed appeal is in reality an attempt to revisit the Judge's conclusions based on the evidence. That involves factual questions, not a question of law. [16] As to the proposition that the Judge rejected the evidence of Dr Borowczyk without a proper basis, the Judge noted Dr Borowczyk's opinion that all the applicant's back problems, including the degenerative changes, were secondary to his injury. He did not accept that opinion. He said that Dr Borowczyk did not give reasons for that conclusion. The Judge clearly formed the view that Dr Borowczyk's opinion was not consistent with degeneration prior to the injury in April 1997. The Judge described the evidence of degeneration from other causes as "overwhelming". The proposition that the Judge erred in law in his treatment of that evidence is not made out. This, too, involves factual conclusions, not a question of law.[17] The next proposition is that the Judge has misinterpreted Mr Finnis' report. The Judge found that Mr Finnis' report did not support the applicant's contention that the applicant's problems were also attributable to and secondary to his injury. He gave reasons for that conclusion. He noted that Mr Finnis also identified that the underlying structural basis of the applicant's problem is largely degeneration and spondylotic. He acknowledged Mr Finnis' view that the degeneration at L2/3 had progressed partly as a consequence of the surgery necessitated by the 1997 injury. He held that there can be no basis for contending that any disc disruption at L2/3 (with which Mr Finnis' report was primarily concerned) is accident related. These are factual findings, and no arguable error of law in the way in which they were reached, sufficient to justify the granting of leave to appeal, has been demonstrated. [18] In summary, all of the matters relied on by the applicant involve findings of fact with which an appellate Court, which is confined to questions of law, should not interfere. The Judge's findings on the medical reports, and his acceptance or rejection of opinions expressed in these reports, are factual findings which do not raise questions of law of a sort which justifies a further appeal. [19] For these reasons, the application for special leave to appeal must be declined. If issues as to costs arise, counsel may submit memoranda."A D MacKenzie J"Solicitors: Andrew Beck, Wellington for Applicant Young Hunter, Christchurch for Respondent