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Accident Compensation Cases

Lahood v Accident Compensation Corporation (ACAA, 18/07/08)

Judgment Text

P J Cartwright Member
In his three and a half pages of submissions dated 10 February 2008, first the appellant makes reference to the review which he attended on 7 March 1988 in the presence of Ian R Roy, Review Officer, Central Districts. The appellant noted that “ … E Jamieson was not the surgeon who performed my surgery, and ACC had obviously received Cockerell's report that I had no knowledge of.” 
The Authority has obviously through the course of reading much of the correspondence on Lahood files, become aware of conflicting assessments of the provision of medical evidence by or on behalf of the appellant. 
Suffice for the Authority to note that any issue as to responsibility for provision of medical evidence in these proceedings, is not within the preserve of the Appeal Authority's decision no. 4/2004 which issued on 8 June 2004. The immediate issue in that decision was whether the Authority should exercise its discretion under s 108 of the Accident Compensation Act 1982 to allow out of time the appeal as to whether ACC was correct to cease the appellant's entitlements on the basis of his non-compliance with ACC's rehabilitation requirements. That only the briefest of consideration of the medical evidence was made in this appeal is borne out by mention in para [30] of decision no. 4/2004 that: 
“Specialists reports had been prepared by Mr Cockerell, Mr Davey and latterly Mr Thurston, on 25 November 1989. ”
The remainder of the first and second pages of the appellant's submission of 10 February 2008 focus, in the context of the appellant's alleged failure to continue participation in the rehabilitation and retraining programme arranged for him, on the First Rehab Palmerston North experience of 16 days attendances out of 30 days, and the Second Rehab experience Wellington which the appellant said he believed he “ … did the best I could have done” and “I took the rehab initiative”
In the first paragraph on the third page of his submission of 10 February 2008 the appellant emphasised: 
“If Cockerell's report had not come out, to this day I believe I would have won the review. ”
The appellant went on to explain: 
“The rehabilitation provided would be deemed as substandard in todays ‘Rehabilitation back to the Workplace’. Today would see a variety of treatment options to support the repair of my injury. At the time I was given no phsyio, made to perform menial tasks and given no support/rehabilitation, phsycially, mentally or spiritually. I feel I was doing well until ACC began to fail to take care of me and put me in unrealistic situations with unrealistic expectations. As I was required to find the second rehab myself, including accommodation this added extra stress to the rehab Assigned. I had to find my own rehab in Wellington I was not entitled to any accommodation support etc. I was a young man whose life and plans for the future had changed dramatically through receiving a workplace injury. Through this whole period I was in constant contact with my employer at DB Breweries who was asking when was I returning. There was never any communication between ACC and this person, to explore whether there were any alternative employment opportunities enabling me to return to a place of work that I had enjoyed. This can be evidenced by attendance at the breweries, I was reliable, willing and able. I worked considerable hours, due to overtime that was plentiful at the time, which lead to a high weekly income. This also has been an area that ACC has disagreed with over the years, and queried my wage of $711 at week, although I must add this information can not be verified anywhere as ACC have ‘lost this part of my file’, verifying my weekly wage from the Breweries at this time. Adding to the above stress was a constant deduction in monies received from ACC, to the point where living was almost impossible. ”
The appellant concludes: 
“ … I cannot think of an employer who would be interested in employing me due to my back injury and associated difficulties, specialists who have overridden Cockeralls report, and many more discrepancies, that the ACC in the eighties were able to cover up and bully. I would just like to be heard, I can talk clearly to my whole file, I can evidence the wrongdoings, I have no money to gain a solicitor to forward submissions on my behalf There have been many on this journey who have seen the wrongdoings and have said just keep on fighting, I have been to so many different hearings, appeals, applications, and this time, it appears even the judge who reviewed this file last year believes it needs to be heard impartially once and for all. ”
Of necessity the submissions made by Mr Barnett on behalf of the respondent must be upheld. In consequence the appeal will be dismissed. While the narrow issue in this appeal will be unable to be pursued further unless it is taken further before the High Court on the granting of special leave to appeal, the appellant, Mr Lahood, may have other courses of action available to him. For example, as he has already explained, “ … it appears even the judge who reviewed this file last year believed it needs to be heard impartially once and for all.” 
Mr Lahood seeks leave to appeal to the High Court the decision of the Appeal Authority 4/04 and dated 8 June 2004. 
Appeal to the High Court is provided for by s 111 of the Accident Compensation Act 1982. Leave to appeal is discretionary and on the grounds that there is a question of law or, in the Authority's opinion, there is a question involving a matter of general or public importance or that there is some other reason why leave should be given. 
The decision of the Appeal Authority which Mr Lahood now seeks leave to appeal to the High Court, is a decision declining to extend time on an appeal filed 14 years out of time. 
The Authority's power to extend time on the filing of a late appeal is discretionary. On well established principles of law an appellate Court, in this case the High Court, will rarely interfere with the exercise of a discretion by a lower Court or Tribunal. As a general rule, the exercise of a discretion would not be interfered with unless it could be shown that a plainly wrong principle had been applied, or that the decision was so unreasonable as to indicate a misdirection on the part of the Court or Tribunal in exercising its discretion. 
The grounds for extending time for leave to appeal are well understood and stated by the High Court in McDougal v ACC [1983] NZAR 85. The Appeal Authority in its decision cites McDougal and applies the principles. Of these principles, it is frequently the strength or merits of the appellant's substantive case which will assume the most significance in deciding whether to extend time. 
In the present instance, the Appeal Authority concluded that none of the four specific principles in McDougal were satisfied such that it was appropriate to extend time. Thus there were compelling reasons for not extending time. 
Although s 111 permits leave to appeal to the High Court for any reason, it would be rare to do so. Generally, the ground for granting leave is that there is an arguable question of law arising. 
In the Authority's determination there is no arguable question of law arising here. There is no misdirection on the part of the Authority in the exercise of its discretion to refuse an extension of time which could possibly amount to any error of law. 
Furthermore the substantive merits of the intended appeal were closely considered by the Authority and found to turn on the facts with no question of law arising. 
The substantive issue which the appellant sought to argue was that the Corporation was wrong to cease or suspend entitlements pursuant to s 87(3) of the 1982 Act on the grounds of an unreasonable refusal to comply with a requirement of the Corporation in relation to his rehabilitation. This, as the Authority observed, requires a consideration as to whether the Corporation's condition requiring rehabilitation was reasonable and the claimant's refusal was unreasonable. A decision on those two questions turns on findings of fact and no question of law arises. 
The Authority found on the facts at paragraph 48 of the decision that the Corporation's referral of the appellant to the rehabilitation league was proper and reasonable. And at paragraph 56 the Authority found that the appellant's conduct was unreasonable and at paragraph 57 found that the conduct amounted to a refusal to comply with a requirement of the Corporation in terms of s 87(3) of the Act. 
A further reason why leave to appeal should be refused is that the Appeal Authority's decision turned in part on its findings of credibility and such findings are not ones that the High Court on appeal could interfere with. 
As to any question of general or public importance, this may be a consideration in comparatively rare case and arises particularly where there are issues of principle which have a wider implication beyond that of the appellant's interests. Here there is no issue of general or public importance as the decision is very much founded upon the facts of the particular case. 
For a multiplicity of reasons, then, foremost of which are that the decision itself was discretionary and secondly, the substantive merits do not give rise to questions of law, leave to appeal is refused. 

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