Sant v Accident Compensation Corporation (Leave to Appeal)

IN THE DISTRICT COURT AT WELLINGTON [2017] NZACC 88 ACR 329/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT PURSUANT TO SECTION 162 OF THE ACT BETWEEN SHAUN SANT Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Appearing: On the Papers Judgment: 31 July 2017 JUDGMENT OF JUDGE AA SINCLAIR [Leave to appeal s 162 Accident Compensation Act 2001] [1] Mr Shaun Sant (the applicant) applies for leave to appeal to the High Court from the decision of Judge A N MacLean dated 12 October 2016. District Court judgment [2] The applicant was diagnosed with osteoid osteoma in his left tibia in 1989. In February 1990, he underwent left tibial osteoma resection surgery. During the surgery a tourniquet was used and an above knee cast applied post-surgery. The applicant developed varicose veins and was treated for the condition intermittently from 1993 onwards. [3] On 5 September 2014, the applicant lodged a treatment injury claim for varicose veins of the left leg. The Corporation obtained the applicant's historic medical records and sought a specialist report from Mr Ferrar, a vascular surgeon. Mr Ferrar opined that the treatment of the tibia in 1990 did not cause the applicant's varicose veins. The Corporation issued its decision declining cover on 14 April 2015 and that decision was subsequently upheld on review. [4] The critical issue for determination by the District Court was whether there was a causal link between the 1990 injury and the varicose veins. Judge Maclean reviewed the medical evidence at length and held: [33] In weighing up the evidence adduced by the respondent, against that of the appellant, I am not persuaded that a causal link has been established as more likely than not. The appellant's personal views on causation, while understandable, cannot override the specialist view. Dr Del Riego's opinion, while carrying more weight seems essentially to reflect a degree of commendable advocacy on his part but, weighed in the balance as against a specialist opinion also are (sic) not determinative. The applicant's case [5] The ground of appeal relied upon by the applicant in his application for leave and brief supporting submissions, is to the effect that the Corporation failed to put the correct question to Mr Ferrar by asking him to report on whether the applicant's surgery for the removal of an osteoid osteoma was the cause of the applicant's varicose veins, rather than inquiring whether the tourniquet application was the cause of the applicant's varicose veins. Discussion [6] A District Court Judge may grant an application for leave to appeal under s 162 of the Accident Compensation Act 2001 on an error of law. That question of law must be capable of bona fide and serious argument. The Corporation opposes the present application on the basis that no question of law has been identified. [7] In his judgment, Judge MacLean noted that the applicant believed that "it was a tourniquet being left on longer than was safe that had created a consequential development of problems leading to his current varicose vein problems"." More importantly, it is evident from the judgment, that Mr Ferrar was provided with prior medical reports and with the correspondence from Dr Del Riego, the applicant's general practitioner, in which Dr Del Riego discussed the use of the tourniquet and knee cast and opined that the applicant's varicose veins were a consequence of the surgery and/or use of the above knee cast for three months post surgery. Mr Ferrar was therefore well aware of the contention that the use of the tourniquet during the 1990 surgery attributed to the applicant's varicose veins. Nevertheless, in his follow up report of 16 August 2016, Mr Ferrar remained firmly of the view that the 1990 surgery was not causative of the applicant's varicose veins. [8] I do not consider that there is any particular merit in the applicant's ground of appeal. However, in any case, the issue raised by the applicant is one of fact and does not constitute the basis for an appeal to the High Court which as stated above, can only be on a matter of law. Decision [9] The applicant has not identified any question of law in respect of which leave to appeal to the High Court could be granted. Accordingly, the application for leave to appeal to the High Court is dismissed. AA Sinclair District Court Judge ' Impact Manufacturing Lid v Accident Rehabilitation and Compensation Insurance Corporation, Wellington HC AP 266/00 Doogue J. At [10] of the District Court Judgment.