Shann v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. [2010] NZACC 229 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an application for leave to appeal to the High Court pursuant to Section 162 of the Act BETWEEN PAUL SHANN (Al 447/08 and Al 448/08) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The applicant has lodged an application for leave to appeal to the High Court from a decision of His Honour Judge D A Ongley, given on 8 April 2009 under decision number 53/09. [2] That decision did encompass two separate appeals from two review decisions. Those two appeals were heard together and His Honour incorporated decisions in respect of both issues in the one reserved judgment. (3] Thus it is the case that whilst there was only one decision of His Honour Judge Ongley, that decision did in fact consist of two decisions on separate and distinct issues and each of the decisions made by His Honour is now being sought to be appealed to the High Court. [4] The first decision, which has the Registry Reference Al 447/08, was a decision relating to the applicant's appeal from a review decision which had determined that a letter from the respondent to the applicant dated 16 April 2008 2 was not a decision within the meaning of Section 6 of the Act, and therefore was not capable of being reviewed. [5] The second decision, under Registry Reference Al 448/08, relates to an appeal from a decision of the respondent dated 24 April 2008, declining the applicant's claim for cover for a treatment injury, and which decision was confirmed at review by Review Decision dated 18 September 2008. [6] Dealing first with Appeal Reference Al 447/08, this matter has its genesis with the applicant suffering a back strain injury whilst lifting a TV set in June 1996. The applicant received cover and entitlements for that injury, but in May 2003, the respondent issued a decision suspending entitlements on the basis that any ongoing medical problems were not attributable to the applicant's covered back strain injury. [7] That decision went to review and then appeal and by Decision No. 123/04, I dismissed the applicant's appeal from that primary decision. [8] The applicant subsequently lodged a further claim in relation to that 1996 back strain injury, that claim for cover being a claim in relation to an alleged chronic pain syndrome. [9] That claim was declined by the respondent, that decision confirmed at review, and the appeal to this Court was dismissed by decision of His Honour Judge D A Ongley in July 2007. [10] The decision of His Honour Judge Ongley was then appealed to the High Court and in a decision dated 8 August 2008, His Honour Justice Clifford, dismissed the appeal, he finding no error of law or any matter upon which the applicant could succeed. [11] Prior to that High Court decision, the applicant had entered into further correspondence with the respondent, again seeking to re-open issues pertaining to the back strain injury of 1996, and introducing what was contended to be new medical evidence in relation thereto. [12] The respondent responded to the applicant's request for reconsideration of his claim and entitlements and it did so in the letter of 16 April 2008 by stating that it did not consider it necessary to issue a new reviewable decision, as it appeared that the applicant was trying to re-litigate issues that had already been 3 before the Courts, and that the recent evidence provided did not address any new issue and did not call into question the other available evidence. [13] In his decision on whether the respondent's letter was a reviewable decision, His Honour considered the nature of the additional evidence which the applicant had tendered, and he made a finding that the evidence was not significant enough to have required the respondent to make a new decision or itself make further medical investigation, and he confirmed that the respondent's letter did no more than confirm its original decision relating to suspension of entitlements, and which of course had already been through the Court hierarchy. [14] In his submissions the applicant contended that he had presented significant new evidence which gave rise to a different causally connected question relating to the injury of 1996. [15] As earlier noted, the issue before His Honour was whether the respondent's letter was a reviewable decision, and His Honour determined that it was not a new decision but simply advice reasserting the respondent's present and ongoing position regarding the status of that 1996 injury. 16] The decision of His Honour was one made on the facts, and whilst it must be accepted that a determination of whether the facts amount to a reviewable decision does involve a question of law, I find that the state of the law in that regard is well settled and where the Courts have on numerous occasions identified that the mere re-statement by the Corporation of its position regarding any claim is no more than an administrative act and does not constitute a new decision within the meaning of s.6. [17] In those circumstances I do not consider that any question of law that was involved in the appeal is one which is of such a nature as to be capable of bona fide and serious argument, being one of the criteria which must be identified before leave would be granted. [18] Accordingly, leave to appeal His Honour's decision in relation to the issue in Appeal Reference Al 447/08 is declined. [19] Turning now to the second issue contained in His Honour's decision, namely whether the Corporation's primary decision to decline to grant cover for a claimed treatment injury was correct. [20] This issue also has its genesis in 1996 at a time when the applicant was receiving treatment for his back strain injury. [21] The relevant factual situation being that part of his treatment involved him receiving physiotherapy, and which treatment he was receiving from an organisation known as Sportswide Rehabilitation, and when he was leaving the premises where he had been treated he slipped on some steps and fell, causing an aggravation of his lumbar injury. [22] It is the case that the circumstance of that fall on 5 December 1996 was treated as an exacerbation of the earlier injury and no new claim for cover was made, but it was recognised by the respondent as being an injuring event. [23] It is that aspect, of course, which was part of the back strain injury which was ultimately identified as being no longer a source of ongoing problems when the respondent issued its decision in May 2003 suspending entitlements. [24] The situation giving rise to the respondent's present decision was that on 11 February 2008 the applicant lodged an application for cover for a treatment injury, claimed to be the back injury worsened by the fall, he claiming that the injury arose as a consequence of treatment. [25] In his decision His Honour Judge Ongley ruled that any injury caused by the applicant's fall was able to be considered for cover as a personal injury by accident, but that such an injury did not come within the definition of treatment as defined in Section 33 of the Act. His Honour determined that the meaning of treatment was clearly restricted to the medical or therapeutic aspects of treatment, and the injury must be connected with the treatment itself. [26] His Honour stated further that any injury that occurs because the person is in a location for the purpose of treatment is something incidental and not connected with the process of treatment. His Honour found on the facts that the fall did not cause a treatment injury. [27] In this aspect of His Honour's decision, there is again a question of law, namely whether falling on the steps either exiting or entering a treatment location, constitutes a treatment injury, but I find it to be the case that by no stretch of the definition of "treatment" in Section 33 of the Act, could such a factual scenario come within that definition. 5 [28] I find that the question of law is not one that could be considered to be capable of an interpretation favourable to the applicant, and again, I find and rule that it is not a point of law which is capable of bona fide and serious argument. [29] Accordingly, leave to appeal the decision under Appeal Reference Al 448/08 is declined. DATED this 13 day of Daembe/2010 M J Beattie District Court Judge