Churchward v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT W [2012] NZACC 131 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN REGINALD CHURCHWARD (ACR 290/2010) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WELLINGTON on 11 April 2012. APPEARANCES Mr M Dixon-Mciver, Advocate for Appellant. Ms W Aldred, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from a review decision dated 16 April 2010. That part of the review decision in contention is the direction by the Reviewer that the respondent arrange for a fresh mental injury impairment assessment to be carried out and that the respondent then issue a fresh decision relating to the appellant's lump sum entitlement, if any, arising from his covered mental injury. [2] To put that issue in perspective, certain relevant background facts need to be noted, and these are as follows: 2 The appellant has cover for certain physical injuries to his shoulders and lumbar spine, suffered in accidents in 1991 and 1995 respectively. In 2007, consequent on a report from Dr J Collier, Psychiatrist, the respondent extended cover to the appellant for the mental injuries of depression and chronic pain, acknowledged as having arisen from those covered physical injuries. In October 2008 the appellant made application to the respondent for an independence allowance and lump sum compensation in respect of those covered physical and mental injuries. In November 2008, the respondent referred the claim to Dr Blair Christian, Occupational Medicine Physician, for assessment of the Whole Person Impairment percentages for those covered injuries. On 11 November 2008, Dr Christian provided the respondent with two assessment reports, being one for the physical injuries and another for the mental injuries. The assessment of the Whole Person Impairment for the physical injuries was 21percent, and the assessment for the mental injuries was 40 percent. On receipt of those reports the respondent did not issue a decision, but rather sought to have the mental injury aspect peer reviewed by Dr Rob Percival, Occupational Medicine Specialist. It is the case that Dr Percival advised the respondent that he would not recommend that it accept Dr Christian's assessment of the mental injury impairment. He recommended that a second opinion by way of peer review be obtained. It is the case that this procedure was taking some time and before any decision on the appellant's application for entitlements was given, the appellant's Advocate lodged an application for 3 review pursuant to Section 134(1)(b) of the Act, alleging that there had been unreasonable delay in the processing of the appellant's claim for entitlement. It is that application which came on for review in April 2010, and it is also the case that prior to that review hearing the respondent did issue a decision in relation to the appellant's independence allowance entitlement in respect of his covered physical injuries, and it was accepted that there was no issue remaining in respect of the independence allowance entitlements of the appellant as of the date of the review hearing. It was as a consequence of the evidence heard at review that the Reviewer made the decision to direct that a further mental injury assessment be carried out. [3] It is the case that firstly at the review hearing, and now in submissions to this Court, Mr Dixon-Mciver has asserted that there is no basis in law for the respondent to seek to have an assessment peer reviewed, and that the respondent is obliged to accept the assessment so made by the duly appointed assessor, and it was his contention now, that this Court should direct that the respondent formally accept Dr Christian's assessment and provide lump sum entitlement accordingly. [4] It was the Reviewer's decision that there was sufficient evidence to support the respondent rejecting Dr Christian's opinion, as it related to the mental injury impairment, and it was on that basis that he directed that a further impairment assessment be undertaken. [5] It is the submission of Counsel for the Respondent that the decision of the Reviewer was the correct one in the circumstances. It is to be further noted from Counsel for the Respondent that the appellant has refused to attend any further assessment, and therefore the matter of his entitlement to lump sum compensation for mental injuries has not progressed at all since the review decision of April 2010. [6] It was Mr Dixon-Mciver's submission that there is no provision in the Act for an assessment to be peer reviewed, or for the respondent to order a second assessment because of the advice of a peer reviewer, and he submitted that the respondent was required to make payment to the appellant of his lump sum entitlement based on Dr Christian's assessment. DECISION [7] It is the position in this case that there has thus far been no decision determining an entitlement to lump sum compensation for mental injuries suffered by the appellant, and the Court finds that for this reason there is no decision assessing the Whole Person Impairment percentage for mental injuries. It is therefore the case, I find as a matter of law, that this Court cannot itself make a decision granting lump sum entitlement for mental injuries, as such a decision would be a primary decision and this Court has no jurisdiction to issue a primary decision, and indeed, the Reviewer has not made a primary decision in relation to lump sum entitlement. [8] Section 149 of the Act is quite clear that an appeal can only be from a review decision, and it is of course the case that a review decision can only be a review of a primary decision of the Corporation. [9] It is of relevance that the appellant's application for review was one made pursuant to Section 134(1)(b) of the Act, where it was alleged that the respondent had been guilty of unreasonable delay in processing the appellant's claim for an entitlement. Thus, the application for review itself was not an application relating to a decision of the respondent which was considered to be incorrect. [10] It is as a consequence of the basis of the application for review that the Reviewer took the correct position and made a direction that the respondent forthwith attend to the obtaining of an assessment of the impairment of the appellant's mental injuries and to then make a decision in respect thereof. [11] In those circumstances, I find as a matter of law, that this Court has no power to overturn that direction, and as I have already identified, the Court has 5 no power to itself make a primary decision determining any lump sum entitlement for this appellant. [12] As earlier noted, the Court had been made aware of the fact that the respondent was seeking to comply with the Reviewer's request, but that the appellant himself was refusing to submit himself for a further assessment. This Court can only indicate that if that continues to be the case, then the appellant will not be able to obtain any lump sum entitlement for his covered mental injuries, as it is the case from this Court's decision that the assessment of Dr Christian cannot be transferred into an entitlement decision. [13] I therefore find that the Reviewer's decision was the correct decision in the circumstances, and that it is certainly in the appellant's best interests that he now forthwith presents himself for a further assessment as soon as a date for same has been provided to him by the respondent. [14] For the foregoing reasons, therefore, this appeal is dismissed. DATED this 19"day of April 2012 M J Beattie District Court Judge