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Accident Compensation Cases

Sparrow v Accident Compensation Corporation (DC, 08/03/02)

Judgment Text

Judge M J Beattie
The issue in this appeal, as I determine it to be, is whether the respondent correctly exercised its discretion under s 89(5)(b) declining to redetermine whether the appellant had a capacity for work. 
The facts relevant to the determination of the issue in this appeal are not in dispute may be shortly stated as follows: 
By decision dated 12 April 1999 the respondent determined that the appellant had a capacity for work after the appellant had been referred through the work capacity assessment procedure formulated under the 1992 Act. 
That decision ultimately went on appeal before his Honour Judge A W Middleton who, in a decision dated 4 April 2000, determined that the respondent had carried out the work capacity assessment procedure correctly and that the determination of the appellant having a capacity for work was correct. It is to be noted that Mr Miller was counsel for the appellant in that appeal. 
On 6 October 2000 the appellant applied to the respondent for reinstatement of his weekly compensation, in support of this he provided a medical certificate from his GP, Dr Gavin. The respondent wrote to Dr Gavin seeking clarification. Dr Gavin replied on 3 November 2000, stating as follows: 
“In answer to your questions about Ken's current ability to work in the jobs identified in the work capacity assessment. The answer (or should I say my answer) is that he remains fit for light work only. He is somewhat worse currently and would probably need reduced hours say 20-30 hours per week. The jobs identified would be suitable provided that they were at the lighter end of the spectrum. His disabilities stem directly from his crushed knee and will be an ongoing problem for him long term. His major need is help at finding suitable employment. ”
The matter was referred to the respondent's Branch Medical Officer who advised by Memorandum as follows: 
“In my opinion Dr Gavin's report indicates that there has been no deterioration of Mr Sparrow's condition causing a reduction in his capacity to work as a warehouse supervisor, storeperson, safety officer/advisor or bar manager — the jobs identified in the work capacity assessment of 12.04.99. ”
As a consequence of that advice the respondent advised the appellant by decision dated 14 November 2000, that there were no grounds to reconsider the question of his weekly compensation entitlement. 
The respondent sought a review of that decision and Mr Miller represented the appellant at that review. No further medical evidence was sought to be introduced for the purposes of that review. 
In his decision dated 19 March 2000, the Reviewer ruled that the respondent had not been unreasonable in declining to reassess the appellant on the basis that the medical evidence submitted was little different from that which had been the basis on which his capacity for work had been first determined. 
No further evidence was sought to be introduced for the purposes of the appeal to this Court. 
Mr Miller's principal submission was that the Court can interfere with the exercise of a discretion where that discretion has been made under administrative law or in a wrong principle. He submitted that the respondent had applied a wrong legal test in that it had not taken into account non-covered injury components. Counsel submitted that the decision of Fisher J in Kenyon v ACC High Court Wellington 83258/00 as authority for that submission. Counsel also referred to the provision of s 100(2) of the Act which provisions he said gave a clear implication that non-injury factors must be taken into account. 
Counsel finally submitted that s 89(5) required respondent to look at the capacity for work test again from the respective of the corrected test. 
Ms Ahern, counsel for the respondent, submitted that the issue was much simpler than Mr Miller would have required a consideration of whether the respondent was correct not to proceed to direct the reassessment on the basis of the evidence which it was provided but counsel submitted that the evidence indicated there had been no change in the appellant's condition that in the circumstances of reassessment was not warranted. 
Counsel submitted that the Court could not reopen the original determination of the appellant's capacity for work based on the Kenyon decision, in fact the Kenyon decision is not relevant to the issue in this appeal. 
Although the appellant's original request to the respondent was for him to have his weekly compensation reinstated and that was the purpose of the medical certificate from his GP, the fact of the matter was that the appellant's entitlement to compensation had been ceased by operation of law following the final determination by His Honour Judge Middleton that the appellant did have a capacity for work. This Court cannot go behind that decision and certainly the provisions of the Accident Insurance Act relating to reassessment do not entail any revisiting of the validity of the original determination that the appellant had a capacity for work. 
The particular provision with which the Court is concerned in this present case is that of s 89(5). That section generally provides for the Corporation to determine whether an insured has a capacity for work and requires that determination be carried out in accordance with ss 93 to 100 of the Act. Subsection (5) states: 
“However the insurer must determine the insured's capacity for work again if — 
the insurer has previously determined that the insured had a capacity for work, either under — 
this section, or 
the insurer believes or should reasonably believe, that the insured's capacity for work may have deteriorated since the previous determination (6) 
the insured may give the insurer information to assist the insurer to reach the belief under ss (5)(b). ”
Mr Miller submitted that when the respondent declined to refer the appellant for reassessment it did so without considering what might be considered non-covered injury factors. Such as the appellant's depression and his educational limitations. Counsel submitted that a failure to take these disabilities into account was parting company with the real world as had been observed by Fisher J in Kenyon at Para 21 of his decision. 
Essentially Mr Miller was saying that when the respondent came to consider Dr Gavin's report and whether or not there were reasonable grounds to believe that the appellant's capacity for cover may have deteriorated, it should have included these other factors. Because it did not do so he contends it exercises discretion on a wrong principle of law. 
I have considered the observations, which were arbiter, of His Honour Justice Fisher in Kenyon, the actual passage to which he is referring states as follows: 
“I can understand Mr Miller's argument that in terms of a person's overall capacity for work, the consequences of the person's personal injury must include the consequences for that person having regard to pre existing disabilities. If a man who already has a disability is able to work in a limited range of occupations only because of a particular physical attribute, and that attribute is then lost due to a personal injury, incapacity for work is a direct consequence of the personal injury. To ignore the pre-existing disability is to part company with the real world. ”
I consider that that His Honour was considering the extreme case such as Mr Miller advanced before me such as the case of a one-eyed person who loses the sight of his good eye and the legaless ???? answer which was the illustration used in the decision in all ??? ASALSIG. 
Those cases and instances have no relevance to the present field. I do not understand counsel for the appellant to be advancing the proposition that this appellant's physical limitations were such that he could only do one job and that his injury has now prevented that job from being done and his pre existing disabilities or inadequacies prevent him from doing anything else. If such had been the case then that ought to have been the argument put before His Honour Judge Middleton in the appeal on the issue of whether the appellant had a capacity for work or not. As I have already stated this Court cannot and does not intend to go behind the decision of a revisit of a decision of the Court that the appellant had a capacity for work. 
For that as the starting point the issue must be whether or not there has been a deterioration in his capacity for work since the previous determination. That question I find is a question of fact which requires consideration of the medical evidence and it is that question which in the first instance must be ripped out by the respondent when the matter was raised as it was by the appellant's request to have weekly compensation to be reinstated. 
The Branch Medical Advisor's Memorandum indicates the basis upon which the respondent gave consideration to request and I find that the respondent's then determination, based as it was upon the brief medical certificate from the appellant's GP certainly did not raise a reasonable belief that the appellant's capacity for work had deteriorated since the previous determination and I find that the exercising of its discretion based on that evidence was entirely proper and cannot be said to have been an improper exercise of discretion. 
For the avoidance of doubt I formally rule that the respondent was not required to take into account or consider any pre existing disabilities or any of the notions that may have been raised by the decision in Kenyon. I further note that in Para 24 of Justice Fischer's decision he indicates that he expresses no final view on the question as is raised by Mr Miller and advice identified by the Learned Judge in Para 21 of his decision. 
For the foregoing reasons therefore I find that the respondent was entitled to make the decision it did pursuant to s 89(5) and decline to have the appellant's capacity for work determined again. This appeal is dismissed. 

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