Malesic v Accident Compensation Corporation

IN THE DISTRICT COURT AT WELLINGTON (2016] NZACC 54 ACR 312/13 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN S MALESIC Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 19 October 2015 with further evidence and submissions received 24 February 2016 Appearances: J Miller for the appellant A D Barnett for the respondent Judgment: 29 february 2016 RESERVED JUDGMENT OF JUDGE A N MACLEAN [1] This is an appeal from a review decision dated 10 May 2013 relating to two interrelated applications for review although, by this time the issue for determination by the Court had narrowed down to what is the correct date for a treatment injury, with a related suspension of weekly compensation payments becoming a non-issue because it is now, common ground as to what that date was. [2] The way the matter evolved after the initial hearing before me was that, in due course, both appellant and respondent are agreed that upon application of the provisions of's 38 the relevant date now is, is 13 November 1997. [3] Up until recently, after further evidence adduced by the appellant was received, the respondent had initially considered the relevant date was 4 September 2009( although that later changed). [4] A review was lodged from that decision by the appellant, seeking a revision of the date of injury to the date of the original surgery from which problems had arisen namely 24 April 1997. [5] In December 2012, the respondent accepted that the appropriate date of injury was 30 April 1999, on the information it had at that time that the appellant had first seen her general practitioner about pain, which in hindsight, was clearly related to the original surgery in April 1997.However, as a result of the appellant providing additional recent documentation, it is now clear that an attendance at emergency services at Capital Coast Health with a complaint of abdominal pain on 13 November 1997, clearly linked back to a laparoscopic cholecystectomy in April 1997 was the correct date, in terms of s 38(1) as being "the date on which a person suffers a treatment injury is the date on which the person first seeks or receives treatment for the symptoms of that personal injury". [6] The upshot of that, is that the reviewer's decision that the date of injury was 30 April 1999, is not now correct. This only arises however, because of the further information recently furnished by the appellant, which she had foreshadowed when she spoke to the Court at the original hearing. It was not before the Reviewer. [7] The information now available however, does not change the outcome of the reviewer's decision on suspension of weekly compensation payments because ,it is common ground that the appellant was also not an earner as at the, now, revised date of 13 November 1997. However, there remains an outstanding matter insofar as the appellant is concerned. Although both counsel are of the view that the applicable Act is the present Accident Compensation Act 2001, and not the prior legislation which encompassed the concept of medical misadventure, the appellant seeks a ruling nevertheless that the former Act applies. [8] The problem with that proposition, as both counsel accept, is that s 34(5) of the present Act makes it clear that in the particular circumstances of this case the matter falls within the current Act. [9] Subsection (5) states: To avoid doubt, a claim for cover for personal injury caused by medical misadventure before 1 July 2005 that is lodged for the first time on or after 1 July 2005 must be determined under the relevant provisions in force after 1 July 2005 (that is, it is to be determined as if it were a treatment injury). [10] It is common ground that the first application for cover was not made until 2012 but to set that in context some key other dates should be noted: Original gallbladder surgery 24 April 1997 when it appears that some surgical clips and gallstones were left in the appellant which the appellant understandably considers as the critical injury, because from it, appears to have stemmed ongoing problems ,including septicaemia, follow up surgery and attendances, including emergency admissions and an eventual cholecystectomy. This is confirmed in a letter dated 9 October 2012 from Mr John Keating, colorectal and general surgeon. He said: I can confirm that Mrs Malesic's problems do relate to extensive gallstone problems she had in 1997. At that time she had an emergency ERCP on two occasions for common duct stones and cholangitis and pancreatitis and subsequently required a cholecystectomy. He also confirmed: That I think she has had ongoing pain and discomfort since 1997 relating to retained intraperitoneal gallstones. On 13 November 1997 (as confirmed by recently tabled further documentation from the appellant) there was an attendance at emergency services Capital Coast Health with a complaint of abdominal pain. That is now the mutually accepted applicable date if s 38(1) is applied. As signalled earlier that is in my view the correct relevant date of injury in this context. There were further consequential admissions and treatments through 1999 but it was not until June 2012 that further enquiries revealed the problem culminating on 17 June 2012 with an operation to remove the retained gallstones and the following day the treating hospital lodged, on the appellant's behalf , the claim form. On 19 July 2012 the respondent accepted cover as a complication of the 1997 surgery and initially as explained earlier noted the date of injury as 4 September 2009 when a CT scan had been carried out. On 20 September 2012 the appellant lodged a review and, following further enquiry, the respondent on 29 December 2012, changed its decision to the date of injury as now being 30 April 1999, being the date referred to earlier, when the appellant saw her GP. A further review was lodged resulting in the outcome as noted above. Analysis and Discussion [11] This appeal followed a somewhat protracted course, as a result of matters arising at the hearing, and further information coming to hand. The appellant played an active part in this aspect including attending , and speaking at the hearing. [12] However sadly for her, the law is against her, in terms of what she personally desires namely, that the matter be dealt with as a medical misadventure going back to the original surgery in April 1997. [13] The combined provisions of ss 34 and 38 mean that the matter is to be dealt with as a treatment injury under the current Act, not medical misadventure under the former Act, and the date of the treatment injury is, as all now agree, not April 1997 or 4 September 1999, but 13 November 1997, for the reasons explained. [14] Accordingly the appeal is allowed to the extent that the date of the treatment injury is not, as determined by the reviewer, but 13 November 1997. That however does not change the substantive related decision of the reviewer that the suspension of weekly compensation payments was correct, because on neither date was the appellant an earner. [15] I have not sought submissions on costs. I note that both counsel were diligent in actively seeking to put the Court in the best possible situation to make a determination, and while the end result of the appeal is substantially in favour of the respondent, nevertheless, I am of the view that in exercise of the wide ranging discretion the Court has, it would be appropriate to make a modest order for costs in the sum of $1000 in favour of the appellant. That is not intended to reflect any degree of criticism ,or punishment, of the respondent, whose stance throughout through Mr Barnett, has been entirely flexible , proper and helpful, but just to recognise, to a small extent, the personal and understandable sense of injustice felt by the appellant with the application of the law, in the particular circumstances. [16] So to confirm, the appeal is allowed in respect of the above adjustment to the treatment injury date, but dismissed in terms of the substantive entitlement outcome. Judge A N Maclean District Court Judge Solicitors: John Miller Law, Wellington for the appellant ACR 312-13-Malesic