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Accident Compensation Cases

Adlam v Accident Compensation Corporation (DC, 25/01/02)

Judgment Text

Judge A A P Willy
The appeal relates to the decision of a Reviewer given on 5 September 2000, concerning a medical report obtained by the respondent. 
The “reasons” in the Application for Review were expressed as follows: 
“That the report was a report for private purposes only not for ACC. That Mr Otto was paid private [sic] and that the Corporation have no jurisdiction to keep the report. ”
The relief sought is: 
“A direction that the report be removed from the file. ”
The Facts 
The relevant facts are that the Corporation is in the process of subjecting Mr Adlam to a Work Capacity Assessment. In the course of doing so it learned that he had consulted Mr Otto, an Orthopaedic Surgeon. Exercising the right it clearly has pursuant to s 60 of the Accident Insurance Act 1998 and the written consent authorising the collection of information given by the appellant on 25 February 1999, it sought and paid for a report from Mr Otto. 
When Mr Adlam learned of this he was very angry and refused to participate further in the Work Capacity Assessment. He then made this application for review. 
Counsel's Submissions 
Counsel contends that in some way which is unclear to me, the report is the subject of litigation privilege. 
It is difficult to say anything useful about this submission other than to note that even if tenable in the context of the review processes under the Act, there was no litigation in progress, or contemplated, when the report was obtained. 
Counsel also submits that the Corporation's action in obtaining the report is somehow an unfair exercise of its powers. There is no factual basis for such a submission, even if available in this jurisdiction. The Corporation simply did what the Act, and Mr Adlam's specific written consent, contemplates. 
More fundamental however, in my view, is the unanswerable fact that there has been no “decision” capable of giving rise to a review or an appeal. The Reviewer should simply have declined jurisdiction. 
Reviews and appeals under this legislation are governed solely by the statute. There is no general jurisdiction for either Reviewers or this Court to act outside of express powers conferred by Parliament. 
Section 135 provides for a right of review of “any of its (the Corporation's) decisions on the claim”
“Decision” is defined in s 13 as follows: 
decision or insurer's decision means all or any of the following decisions by an insurer on a claim: 
A decision whether or not an insured has cover: 
A decision whether or not the insurer will provide any entitlements to an insured: 
A decision about which entitlements the insurer will provide to an insured: 
A decision about the level of any entitlements to be provided: 
Any decision necessary to enable the making of a decision described in any of paragraphs (a) to (d). ”
Section 152 creates a right of appeal “against a review decision”
Clearly, for there to be any right of appeal there must first be a review decision which a Reviewer had jurisdiction to make. The only possibility founding the jurisdiction is that the Corporation in seeking the report has made a “decision” “necessary to enable the making of a decision described in any of paragraphs (a) to (e).” 
In my view it has not done this other than in a very loose sense of the word. The word “decide” has the meaning: 
“settle (issue etc) by giving victory to one side, give judgment (between, in, in favour of, against), bring or come to a resolution … definite or unquestionable. 
(‘Concise Oxford’ 5th Ed.) ”
When it commissioned the report from Mr Otto the Corporation decided nothing in relation to Mr Adlam's right to continue receiving compensation, it merely carried out a step in that process. 
To view this as a “decision” which has right of review and appeal would make the statute unworkable. It would involve the conclusion that every step or action decided on by the Corporation would become subject to review and appeal. That is a nonsense which Parliament cannot have intended. 
The application for review was misconceived. The Reviewer should have declined jurisdiction. There is no valid review decision which can be the subject of an appeal to this Court. I therefore have no jurisdiction to make any orders. 
The consequence is that the Corporation is free to continue the Work Capacity Assessment. 
Costs are reserved. Either party may apply within 21 days of receipt of this judgment. 

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