McLeod v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON DECISION No. 138/2005 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 471/04) BETWEEN PATRICIA TUI McLEOD Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 10 February 2005 Appearances: Appellant in person with Mr Ransfield assisting Dianna Fotiades for respondent Judgment: 28 April 2005 RESERVED JUDGMENT OF JUDGE D A ONGLEY [1] The question in this appeal is whether the appellant has proved that she suffered a physical injury by accident within the meaning of the Injury Prevention, Rehabilitation, and Compensation Act 2001. [2] On 29 January 2002 Ms McLeod and her family were evicted from the home they rented from Housing New Zealand Corporation Limited. In October 2003, through her doctor, she lodged a claim seeking cover for exacerbation of asthma caused by the eviction. The Corporation investigated the claim, but did not receive a response to requests for information and in December 2003 issued a decision declining the claim on the basis that there was no medical documentation to support it. [3] There is no medical information before the Court other than a general practitioner's notes recording consultations and treatment for asthma over several years at least since August 2000. [4] The reasons for declining the claim at review were set out very succinctly by the reviewer and it is worth recording her reasons in full, as Ms Fotiades did in her submissions: "The onus is on Ms McLeod to prove, on the balance of probabilities, that she qualifies for cover under the Act. The transitional provision, Section 360 of the 2001 Act applies, where the claim for cover is lodged after 1 April 2002, for personal injury suffered before 1 April 2002. Under Section 360(2), cover is determined under the 2001 Act, and the Act in force at the time the person suffered the injury. ln Ms McLeod's case, the 1998 Act cover provisions and the 2001 Act cover provisions will apply. The cover provisions under both Acts are similar. To have cover under the 2001 Act, Ms McLeod must establish that she comes within Section 20. Section 20 provides cover for personal injury suffered in New Zealand. Personal injury is defined in Section 26(1)(b) as "physical injuries suffered by a person, including, for example, a strain or a sprain." The injury must be described in Section 20(2)(a), "personal injury caused by an accident to the person." "Accident" is defined in Section 25(1): "25. Accident (1) Accident means any of the following kinds of occurrences: a specific event, or a series of events, that — involves the application of a force (including gravity) or resistance external to the human body, or involves the sudden movement of the body to avoid such a force or resistance external to the human body; and (ii) is not a gradual process:" Section 26(2) excludes from the definition of personal injury, personal injury caused wholly or substantially by a gradual process, disease or infection, unless it comes within Section 20(2)(e) to (h). Section 20(2)(e) covers personal injury caused by a work-related gradual process, disease or infection. Also relevant is Section 53 of the Act. Section 53 requires that a claim for cover be lodged within 12 months of the date of the personal injury. However, ACC must not decline a claim lodged after 12 months, unless the claim's lateness prejudices ACC's ability to make decisions. In Ms McLeod's case, I am satisfied that ACC's decision to decline her claim for cover is correct. My reasons are correct. First, Ms McLeod does not meet the definition of "accident". The eviction from her home on 29 January 2002, is not a specific event or series of events involving the application of a force or resistance external to the human body. Nor is the other limb of the definition met. No specific external force has been identified. Furthermore, 1 am unable to accept Mr Ransfield's argument that these events can be viewed as an "accident", as that term is defined in the Act. Secondly, the other events described, namely the loss of the asthma medication, and the effect of the application to the High Court, do not come within the definition of accident in Section 25. Thirdly, asthma is a disease. Personal injury caused wholly or substantially by disease is excluded by Section 26(2). The exceptions are where the disease is work-related, caused by medical misadventure, consequential on a covered injury, or consequential on treatment given for a covered injury. Ms McLeod's asthma does not fit into any of these exceptions. Fourthly, the personal injury must be caused by an accident, to come within Section 20(2)(a). In Ms McLeod's case, the asthma was pre-existing and was only exacerbated. She suffered from asthma prior to the events of January 2002. This is confirmed by the medical notes supplied. Therefore, even if it is accepted that the events come within the definition of "accident" (and i would say they do not), the asthma cannot have been caused by these events, if Ms McLeod already suffered from asthma. Accordingly, as Ms McLeod has failed to establish that she qualifies for cover, ACC's decision is upheld, and the application for review is dismissed." [5] Ms McLeod, assisted by Mr Ransfield, advanced general grounds for claiming some form of compensation either under the general law or under the Accident Insurance Act 1998 in force at the time of the incident. Ms McLeod has attempted to assert a common law claim but cannot do so if the claim is one for personal injury covered by the Accident Insurance Act 1998 or the Injury Prevention, Rehabilitation, and Compensation Act 2001. Such a claim is at present barred by s317 of the 2001 Act. [6] The tenor of the notice of appeal is that the appeal seeks an answer whether Ms McLeod has a right to claim under the accident compensation legislation or not, so as to either direct the claim back to the reviewer or enable Ms McLeod to take matters further in the High Court. But the this Court cannot decide whether the case can be heard in the High Court, that depends on pleadings and evidence. [7] Ms McLeod took issue with the comment by the Reviewer the "the asthma was pre-existing and was only exacerbated", because that comment appeared to minimise or belittle the effect of the eviction upon her. That view of the comment is understandable, however the Reviewer was obliged to consider the matter in the context of a fairly complex set of rules. The Reviewer had to consider whether there was a physical injury. Exacerbation of a disease or injury is not in itself an injury and the Reviewer found that the evidence was "only" of exacerbation, thus not reaching the threshold for an accident compensation claim. The Reviewer did not say that the exacerbation was not a serious matter. [8] If the Reviewer was correct in finding that there was no physical injury, then there was the further difficulty that there was insufficient evidence of an accident having occurred because the definition in the 2001 Act requires an event or series of events that: .. involves the application of a force (including gravity) or resistance external to the human body, or involves the sudden movement of the body to avoid such a force or resistance external to the human body; [9] The emotional effect of a traumatic event is generally not covered. Emotional trauma caused by physical injury can attract cover, but this is not one of those cases. [10] In the course of delivering a judgment on 19 July 2002 in the case of McLeod v HCNZ (High Court, Auckland Registry, M256-SWO2) on an application to strike out a pleading, Williams J said: [c] The claims for humiliation, loss of dignity, invasion of privacy and exacerbation of her asthma arising from the eviction, do not appear to elucidate on what legal basis invasion of privacy can give rise to a claim for damages, nor does it deal with the possibility of any claim relating to Ms McLeod's asthma being barred under the Accident Compensation legislation. [11] Ms McLeod considered that Williams J had made a finding that she was entitled to accident compensation cover, or directed that such cover be considered. She said in her notice of appeal: "1.2a However, or, alternatively, at pages 39 to 40 of My Statement of Claim - para (ii), I did seek the grant of the prayer for an order: 'that I receive a payment of compensation if one can be found, and also at the 'discretion' of the High Court, its size and scope, if granted as well;' 1.2b His Honour Justice Williams through his reserved Judgement answered this question in the following determination: Pg 6 para (c) - line4 'nor does it deal with the possibility of any claim relating to Ms McLeod's asthma being barred under the Accident Compensation legislation.' 1.2c It is therefore My Interpretation of this determination then, that His Honour exercised His Discretion of that inherent jurisdiction of the High Court of New Zealand, and that such inherent jurisdiction having been through me transferred. by delegation to ACC for my entitlement benefit, was then effectively ignored, it having been further effectively thrown back into my face. 1.2d By these events I have been deeply insulted, and therefore also by them assaulted by this total lack of any respect shown by ACC for what I had managed to achieve before the High Court, and therefore any respect shown for the jurisdiction of the High Court of New Zealand. [12] I think that Williams J meant that Ms McLeod's pleadings in the High Court were defective in some respects, and furthermore she would have to establish in the High Court that she did not have a claim under the Accident Insurance Act 1998 (or the 2001 Act). Decision [13] This appeal does not turn on an argument about the meaning of the High Court judgment. The question is simply whether Ms McLeod has established a claim for personal injury covered by the Accident Insurance Act 1998 and the Injury Prevention, Rehabilitation, and Compensation Act 2001. [14] The answer depends on the facts alleged in support of the claim. The Reviewer dealt with the claim on the basis of facts alleged that Ms McLeod was evicted and the process of eviction caused her asthma to be exacerbated. There was no claim of any other personal injury caused by an external force applied to the body. Ms McLeod did not put forward any medical opinions to establish the probability of personal injury by accident. [15] On those facts, there is no personal injury covered by the compensation Acts. I agree with the Reviewer's analysis that the claim for cover must fail on two counts. The first is that there is no allegation of an injury as understood in this jurisdiction, that is to say a physical injury. An exacerbation is an increase in the symptoms or severity of the disease of asthma. If the claimant already had the disease, then of course the asthma itself was not caused by the eviction. Increasing the symptoms or severity of the disease would probably not be an injury in itself. It is at least theoretically possible that a specialist might suggest that the exacerbation involved physical injury. All that is required to decide this case is that there is no such evidence now before the Court. [16] On the question of accident, there is the same absence of proof. There is no evidence of the application of an external force to the body causing personal injury. [17] Ms McLeod will understand that the failure of a claim for cover under the accident compensation Acts does not mean that there is no bar to a common law claim under s317. Such a claim also depends on the pleadings and facts proved. To avoid the bar under s317, it must be shown that the claim is one which could not be recognised for cover in the accident compensation jurisdiction, not merely that the claimant has failed to prove it in this jurisdiction. [18] For the above reasons the appeal is dismissed. Signed at Wellington on 28 April 2005 Judge D A Ongley District Court Judge