Shann v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT HASTINGS [2013] NZACC 1:37 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN PAUL SHANN (ACR 192/12) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at HASTINGS on 30 April 2013 APPEARANCES Mr P Shann in person. Mr J E Castle, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] This is an appeal from a decision of the respondent dated 24 August 2011, whereby it declined to consider the appellant's claim for cover, it contending that the issue of that claim had already been through the litigation process and it advised that the information that the appellant had provided in his letter of 6 August 2011 did not provide any new information. [2] The respondent's letter further advised that the respondent reiterated its earlier decision on the issue and that its letter of 24 August 2011 was not one which attracted review rights. [3] The appellant sought a review of that decision and in a decision dated 24 January 2012, the Reviewer ruled that this was simply a further attempt by the appellant to re- litigate a declination cover claim, and that no new evidence had been introduced which could cause the matter to be reconsidered. He ruled that there was no such new 2 evidence and therefore he confirmed that the respondent's primary decision was not one capable of review. [4] It is the case that an earlier claim for a treatment injury said to have arisen in 1996 did go through the determination process and an appeal from the respondent's decision to decline cover for a treatment injury was considered by His Honour Judge D A Ongley at a hearing in December 2008, and in respect of which he issued a decision on 8 April 2009, being decision NZACC 53 [2009]. It was Judge Ongley's decision that the alleged circumstances claimed by the appellant, entering Sports-Wide Injury and Rehabilitation Clinic for treatment and slipping, did not constitute a treatment injury within the meaning of the Act, but would simply constitute a discrete physical injury, if indeed a physical injury could be established as having been suffered. [5] Thus it was that Judge Ongley determined that there was no basis for any treatment injury arising out of the events in the latter part of 1996. It was the respondent's primary decision of 5 December 1996 which stated that slipping on steps near a physiotherapy clinic does not constitute treatment, and the event had not occurred in the context of treatment, and as noted above, that situation was confirmed by Judge Ongley in the appeal [6] On 6 August 2011, the appellant submitted a lengthy letter to the respondent and in which he raised a number of issues. 7] It is the case that in that letter on page 2 the appellant stated he was seeking cover for a treatment injury allegedly suffered during treatment which he underwent in June 2003 with Dr Kenneth Orr, and he further alleged that an injury was suffered by him by virtue of an incorrect diagnosis from Dr Orr. [8] It is the case that the activity of Dr Orr in treating the appellant was considered in an earlier decision given by me on 22 April 2004, and where the report of Dr Orr was in fact being submitted by the appellant at that time as being evidence that should be preferred to establish that he was still suffering from a soft tissue injury in the area of L5/S1. [9] In paragraph [14] of that decision, I stated as follows: [14] I have considered the medical evidence, and have weighed up the evidence of Or Orr against that of Mr Phillips, Mr Rao and Dr Crerar, and find that the weight of that latter evidence does not enable the Court to come to a finding, on the balance of probabilities, that the appellant is still suffering from a soft tissue injury arising from a 1996 incident, some seven years after that event. 3 [10] It seems to me that while some of the appellant's continuing assertions are that he has physical injury claims which have never been properly considered, I find it is clearly the case that those claims for cover or continuation of entitlements have been considered by the respondent, at review hearings and by judges on appeal, and therefore the appellant has no entitlement to seek those claims to be reconsidered as there is simply no question of any new evidential circumstances having been presented. (11] The one matter which I find is different is that part of the letter of the appellant of 6 August 2011 where he is seeking cover for a treatment injury arising from the medical treatment he received from Dr Orr in 2003. [12] Whilst the treatment given by Dr Orr has been considered for other purposes, I find that it has not been considered as being an alleged basis for a treatment injury, and I therefore rule that the appellant is entitled to have that claim considered by the respondent as a fresh claim for cover. [13] I therefore direct that the matter of the appellant's claim for a treatment injury arising from treatment by Dr Orr be considered by the respondent and a decision made in respect thereof after consideration of the relevant evidence, and if necessary, the respondent should seek and obtain any further evidence or comment from the appellant prior to issuing any such decision. [14] In all other respects, the decision of the Reviewer determining that the appellant was simply attempting to re-litigate claims which had already been the subject of review and appeal, was correct, and that aspect of the appellant's appeal are dismissed. [15] As the appellant represented himself in this appeal, I make no order for costs. DATED this 15th day of May 2013 heate M J Beattie District Court Judge