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Accident Compensation Cases

Pora v Accident Compensation Corporation (ACAA, 31/03/09)

Judgment Text

Judge P J Cartwright
The appellant applies for leave to appeal to the High Court from a decision by the Appeal Authority dated 7 August 1992. 
In addition, the appellant seeks an extension of time within which to file the application for leave. 
The application for leave was required to be filed within 28 days of the 1992 decision. The application for leave was filed approximately 15 years out of time. There is, of course, a discretion available to the Appeal Authority to extend the time within which to file the application. 
Mr Tui has submitted that given the inordinate delay, the appellant must demonstrate compelling reasons to justify the exercise of the discretion, such reasons including that any appeal to the High Court has a strong prospect of succeeding. 
In addressing the principal issue on appeal, Mr Tui submitted that there are no such compelling reasons and that the likelihood of the appeal succeeding is, at best, remote. 
In the normal course of events, with respect to applications for leave to appeal, there is no need to set out the background in full, and it ordinarily suffices to rely on the background contained in the earlier substantive decision by the Appeal Authority. 
However, as submitted by Mr Tui, a detailed background is unavoidable here given the added issue of lateness, the duration thereof and the reasons offered by the appellant for the delay. 
The Appeal Authority finds he has no alternative but to duplicate here in this decision almost the total substance of the 12 pages of submissions so helpfully made by Mr Tui when preparing for these proceedings. 
Primary Decision by ACC 
The appellant lodged a claim for cover with the respondent in September 1988 for noise induced hearing loss suffered as a result of his occupation as a traffic operator with New Zealand Railways. 
From November 1988 the appellant was assisted with his ACC claim by Ms M L Robbins, solicitor with Haigh Lyon & Co. The solicitors sought lump sum awards as well as earnings-related compensation for the appellant in respect of this claim. 
Cover was duly granted for the noise induced hearing loss and in April 1989 lump sum awards of $6,103.00 (35.9%) and $10,000.00 were made under ss 78 and 79, respectively. 
Following investigation into the appellant's entitlement to earnings-related compensation (“ERC”), the respondent issued a decision on the same on 25 August 1989. The respondent noted that the appellant had been offered an alternative position with New Zealand Railways as a janitor but had declined the position. The respondent's letter read, inter alia: 
“Section 59(1) of the Accident Compensation Act requires the Corporation to pay Earnings Related Compensation in respect of the loss of earning capacity due to injury by accident. 
Where a person displays unjustified unwillingness to seek or obtain suitable employment, it can also be said that continuing incapacity is not due to the injury and the Corporation must review the level of Earnings Related Compensation …  ”
The respondent determined that the appellant was entitled to make up pay, being the difference between the appellant's pre-accident earnings and the earnings that would have been received had the appellant accepted the position of janitor. The result was an entitlement to ERC of $44.83 gross per week. 
Review and Appeal Proceedings 
In September 1989 an application for review was lodged in respect of the primary decision. 
The appellant was represented at review by Ms Robbins. The appellant's solicitors accepted at review that the respondent was entitled under s 59 to reduce a claimant's ERC where there has been an unjustified unwillingness on the part of the claimant to seek suitable employment. Ms Robbins' submissions read, inter alia, at page 1: 
“Section 59 of the Act requires the Corporation to pay ERC in respect of the loss of earning capacity due to PIBA. 
It is accepted that where an IP displays an unjustified unwillingness to seek suitable employment, the loss of earning capacity is not due solely to the injury but also to the unwillingness. ”
The issue raised by the solicitors at review, inter alia, was whether there had been an unjustified unwillingness by the appellant to accept the position of janitor. 
The Review Officer issued a decision on 11 January 1990 dismissing the review. 
A Notice of Appeal was filed with the Appeal Authority registry in or about January 1990. 
An appeal hearing was conducted on 4 October 1990 before Mr B H Blackwood. The appeal was adjourned part heard in order for further medical evidence to be obtained by both parties in relation to a back injury sustained by the appellant — in particular whether the back injury precluded the appellant from undertaking work as a janitor. 
On 7 August 1992, Mr Blackwood issued a decision (decision number 279/92) upholding the respondent's primary decision. The decision reads, inter alia, at page 7: 
“The entitlement to earnings-related compensation arises under section 59(1) of the Act where, as a result of incapacity due to personal injury by accident, an earner suffers any temporary loss of earning capacity. It is well established in this jurisdiction that the entitlement arises not from a loss of earnings but from a loss of earning capacity. The issue in this case is whether, when Mr Pora declined to take the janitor's job offered to him by New Zealand Railways, he was suffering from a temporary loss of earning capacity. 
When the Corporation made its decision to pay only make-up earnings-related compensation and wrote to Mr Pora's solicitors to that effect on 25 August 1989, I clearly held the view that Mr Pora had the earning capacity as a janitor with New Zealand Railways. Reviewing all the evidence, I am not in any way persuaded that the Corporation's decision was wrong. Indeed, I believe that the decision, even in the light of the subsequent medical evidence, was correct …  ”
The Appeal Authority proceeded to set out its reasons for the decision; the Appeal Authority determining that the back injury did not preclude the appellant from undertaking work as a janitor, that the appellant's reasons for declining the job were not reasonable, and that the appellant could have undertaken such employment as a janitor. 
1992 — 2005 
The appellant took no action, in respect of an appeal from the Appeal Authority decision, over this period. 
From July 1992, the appellant instructed Ms K S Vesty from Quigley, Wolfe, Cadenhead to represent him in relation to a number of matters pertaining to his ACC claims. The solicitors continued acting for the appellant through to 1994. 
Initially the solicitors sought lump sum awards on behalf of the appellant for the back and a hernia injury. 
In April 1992 lump sum awards of $1,700.00 (10%) and $8,000.00 were made to the appellant for the back injury. The appellant applied for a review from this decision, but was unsuccessful. 
In June 1993 a lump sum award of $5,000.00 was made to the appellant under s 79 for the hernia injury. This decision, too, went on review but was dismissed. 
The solicitors ceased acting for the appellant some time in 1994. It appears that the appellant was represented for a short time thereafter by Catherine Wilson, advocate — refer to review decision by Mr R M Carter dated 30 August 1994. 
It appears that the Combined Beneficiaries Union (“the CBU”) began acting for the appellant from, in or about, August 1998. 
In a letter dated 26 August 1998 the CBU requested that the appellant's weekly compensation be reassessed. The respondent replied on 18 September 1998 advising that the appellant's ERC had been determined by the Appeal Authority previously. 
The CBU wrote to the respondent again on 5 March 2000 seeking a reassessment of the appellant's weekly compensation from 1 July 1992 under the Accident Rehabilitation & Compensation Insurance Act 1992 (“the 1992 Act”) as well as an assessment under s 60 of the 1982 Act. 
The matter was considered by the respondent's Technical Claims Manager as well as its head office. The respondent subsequently wrote to the appellant on 27 September 2000 advising that the appellant's ERC had been correctly transitioned under the 1992 Act under s 138(1) of the 1992 Act. Further, that assessment was not permitted under s 60 of the 1982 Act. 
The appellant applied for a review. There followed a review proceeding in relation to whether the respondent's letter of 27 September was a decision capable of review. In a review decision dated 25 January 2001, the Review Officer determined that certain aspects of the respondent's letter of 27 September were reviewable; namely the Corporation's advice that the appellant's ERC had been correctly transitioned under the 1992 Act and that the appellant was not entitled to an assessment under s 60. The Review Office also noted at page 5 of the review decision: 
“While I was not provided with a copy of the Appeal Authority's decision [from 1992] at the hearing, Mr Darke did not challenge it. This decision is not to be used as a way of reopening the matters already dealt with at the Appeal Authority. ”
A review hearing was subsequently conducted in relation to the said two aspects identified in the Review Officer's decision. 
A review decision was issued on 11 June 2001. The Reviewer dismissed the review on the basis that s 138 of the 1992 Act preserved, after 1 July 1992, the level of ERC payable under the 1982 Act in that no provision under the 1992 permitted the respondent to reassess the appellant's ERC thereafter. 
A Notice of Appeal was filed on 9 July 2001. 
The District Court issued a decision on 13 March 2003 (decision number 35/03) dismissing the appeal. Beattie DCJ held, inter alia, at paragraphs [8] and [9]: 
The amount of weekly compensation determined as being the appellant's entitlement was established ultimately by the decision of the Accident Compensation Appeal Authority, and it must be the case that the appellant, as well as the respondent, is bound by the decision of the Authority given as it was on 7 August 1992. 
In essence then, it is the sum of weekly compensation as determined by that decision of the Appeal Authority which was brought forward pursuant to s 138 and continued to be payable. The appellant is bound by the decision of the Authority and it is not open to him to seek a recalculation on some alternative basis, as the issue of his entitlement has been finally determined. ”
The appellant applied for leave to appeal to the High Court from the decision of the District Court. Such application was declined by Cadenhead DCJ on 11 May 2005 (decision number 150/05). 
There followed the filing of an application for special leave in the High Court. In a judgment of 11 November 2005, Asher J determined that the questions of law raised by the appellant were not seriously arguable and had no chance of success. 
Application for Leave to Appeal from 1992 Appeal Authority Decision 
An application for leave to appeal to the High Court, from the 1992 Appeal Authority decision, was filed on or about 3 August 2007. 
Submissions in support of both the application for leave and to extend the time were filed on or about 25 January 2008. 
An affidavit for the appellant dated 1 February 2008 was filed on or about 18 April 2008. 
Section 111(1) — (4) of the 1982 Act read: 
Where any party is dissatisfied with any order or decision of the Accident Compensation Appeal Authority, that party may, with the leave of the Authority, appeal to the High Court against the order or decision; 
Provided that, if the Appeal Authority refuses to grant leave to appeal, the High Court may grant special leave to appeal. 
The Appeal Authority or the High Court, as the case may be, may grant leave accordingly in a question of law or if in its opinion the question involved in the Appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the High Court for decision. 
Every appeal under this section shall be heard and determined by the Administrative Division of the High Court. 
Every such appeal shall be made by giving notice of appeal within 28 days after the date on which the appellant was notified of the order or decision appealed against or within such further time as the Appeal Authority or the Court may allow on application made either before or after the expiration of those 28 days. ”
Pursuant to s 111(4) the appellant was required to file an application for leave within 28 days of the Appeal Authority's decision of 7 August 1992. Such period expired on or about 7 September 1992. The application for leave was, in fact, filed in August 2007. 
The Appeal Authority has a discretion to extend such time. As noted by the Appeal Authority, in its Directions made in September 2007, with respect to out of time applications the applicable principles are set out in McDougall v ACC [1983] 4 NZAR 85. The factors to be taken into account are: 
The length of the delay beyond the time allowed; 
The reasons for the delay; 
The strength or merits of the appeal; and 
The prejudice to the respondent if the out of time application is granted. 
Length of the Delay 
As stated above, the length of the delay is approximately 15 years. 
Upheld is Mr Tui's submission that such a period of delay is inordinate, more so given that a period of only 28 days is prescribed. 
Reasons for the Delay 
The appellant in his affidavit of 1 February 2008 contends that he met with his lawyer following the 1992 Appeal Authority decision and was advised that the legal aid rules had changed and if he wished to appeal, he would have to pay for the appeal himself. The appellant also states that he was advised that the appeal would cost $2,000.00 and was required to be paid up front. 
The appellant suggests that he could not afford to pay this amount because he was receiving $150.00-$160.00 a week (from a Sickness Benefit and ERC) and had no substantial savings. 
The appellant also states that he received similar advice from the Auckland Peoples Centre that the legal aid rules had changed. Further, that the centre did not have a solicitor available to take on his case. 
The appellant does not provide any contemporaneous documentary or corroborating affidavit evidence pertaining to the advice he allegedly received in 1992. In the absence thereof there is merit in Mr Tui's submission that the appellant's evidence, prepared some 15-16 years after the said events, ought to be treated with caution. Particularly, as indicated below, as the evidence is not entirely consistent with the information on his ACC file over that period. 
The appellant received legal aid in respect of his appeal before the Appeal Authority — refer to his solicitor's letter of 21 March 1990 addressed to the Appeal Authority registry. On the basis that the appellant then (in 1992) had income of $170.00 per week and no substantial savings/assets, it is likely that the appellant would have continued to qualify for legal aid in respect of any appeal to the High Court. 
Notwithstanding, the appellant received substantial lump sum payments in 1993 with which to fund any appeal to the High Court. 
In April 1993 the appellant received a lump sum award on the back claim of almost $10,000.00 and in June 1993, a sum of $5,000.00 on the hernia claim. 
Further, and equally significant, the suggestion by the appellant that he could not afford, or did not qualify for legal aid, is not consistent with the fact that he had solicitors (Ms K Vesty) acting for him continually from July 1992 (one month before the Appeal Authority decision was issued) to 1994. The solicitors communicated with the respondent in respect of numerous matters on the appellant's several ACC claims. Such assistance extended to representation at reviews over this period. 
In addition, from August 1998 the appellant has been represented by the CBU. Despite having representation for the past nine years, an application for leave to appeal was not lodged until August 2007. 
Upheld is Mr Tui's submission that the appellant has failed to provide adequate reasons to explain any of the delay from September 1992. 
Merits of Appeal 
The submissions here also pertain to the issue as to whether leave ought to be granted. 
Section 111(2) permits an appeal on questions of law or questions warranting an appeal by reason of their general or public importance. Any question of law must be arguable, and have a reasonable prospect of success, particularly so where the application is as late as the present one. 
The appellant contends that the facts are not in dispute and that only questions of law are taken. In short, the following grounds are raised for the appellant: 
The respondent's primary decision, as well as the Appeal Authority's 1992 decision, was made under the proviso to s 59(2), the proviso having been repealed in 1985; 
In the alternative, the primary decision was made under s 59(1) and there existed no power thereunder to assess a claimant's loss of earning capacity on the basis of his or her unjustified unwillingness to undertake suitable alternative work; and 
Whether the decision on 25 August 1989 was a permanent decision and/or whether the appellant's quantum of entitlement to ERC could be reconsidered by the respondent from time to time. 
Section 59(2) Proviso 
There is no substance whatsoever to the suggestion that the respondent's primary decision (or indeed the Appeal Authority's 1992 decision) was made under the proviso to s 59(2). The primary decision letter, as did the Appeal Authority's decision, expressly identified s 59(1) as being the provision upon which the decision was made to assess the appellant's temporary loss of earning capacity. 
As Asher J pointed out at paragraph [22] of his judgment dated 11 November 2005: 
… It can be seen from Mr Blackwood's judgment of 7 August 1992 that he relied only on s 59(1). He did not refer to s 59(2) or any proviso …  ”
Section 59(1) 
Section 59(1) provided ERC for temporary loss of earning capacity attributable to incapacity from personal injury by accident. 
As the Appeal Authority noted at page 7 of its decision, the claimant's entitlement to ERC arises not from a loss of earnings but from a loss of earning capacity. In considering this issue, the respondent is entitled to take into account alternative employment offered to a claimant to ascertain what, if any, temporary loss of earning capacity that claimant was suffering. 
The appellant's solicitors, at the time of the 1990 and 1992 review and appeal proceedings, accepted the respondent's power to take such matters into account under s 59(1). 
Indeed, this is consistent with not only Mr Blackwood's subsequent decision but other decisions of the Appeal Authority — refer to Hill 76/92; a copy of which has been filed with these submissions. 
Ability Of ACC to Reconsider ERC from Time to Time 
The respondent did not determine on 25 August 1989 that that decision would operate permanently. It determined that in respect of the appellant's application for ERC, following the cessation of his employment with NZ Railways in 1988, the appellant was entitled to ERC at the rate identified in the decision letter. The only issue that may be considered on any appeal to the High Court is the correctness of that decision. 
The Corporation's power, after 25 August 1989, to modify or mend the decision, is not within the scope of this proceeding. 
Finally, in respect of the grounds of appeal, the assertion for the appellant that the facts of the appeal are not in dispute, does not assist the appellant. 
The entire decision by the Appeal Authority was concerned with factual issues, in particular the appellant's reasons for refusing to undertake the position of janitor and whether he was capable, having regard to the back injury, of undertaking such work. Medical evidence was received from various medical specialists. The Appeal Authority ultimately determined that the evidence did not support the appellant. 
If the appellant accepts the factual findings of the Appeal Authority, then the inevitable result of any appeal to the High Court is the dismissal of the appeal. 
Prejudice to the Respondent 
If, as the appellant contends, the issue is strictly one of law then there is no prejudice to the respondent with the late appeal. However, if there are questions of fact or mixed questions of fact and law (which inevitably there must be if the Appeal Authority's decision is to be set aside on appeal), then it is very likely that there would be prejudice to the Corporation. 
There must be finality to any litigation, the Appeal Authority decision by Mr Blackwood having been issued in August 1992. No further action in respect to that proceeding was taken by the appellant despite the fact that he had counsel acting for him for the appeal, solicitors assisting him with his ACC claims for a period of two more years, as well as representations from the CBU from 1998. 
It must be noted that there has been absolutely no response from the respondent to a number of requests made that he respond to submissions of counsel for the respondent in opposition to application by the appellant for leave to appeal to the High Court, filed by Mr Tui as counsel for the respondent on 6 June 2008. 
Upheld in the entirety of the submissions made by Mr Tui are that the grounds and arguments for the appellant fall well short of demonstrating that an appeal to the High Court is warranted. 
The application for leave to appeal to the High Court is dismissed. 

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