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Accident Compensation Cases

Jellyman v Accident Compensation Corporation (DC, 19/08/02)

Judgment Text

DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGHT COURT 
M J Beattie Judge
[1]
The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge A W Middleton, issued on 3 November 2000 under No: 303/00. 
[2]
The issue in that appeal was whether the appellant had a continuing entitlement to an independence allowance. 
[3]
The evidence before the Court was that the appellant had been reassessed under the Accident Insurance Act 1998, that assessment being carried out by Dr Hartshorn on or about 1 November 1999 and that Dr Hartshorn assessed the appellant's whole person impairment from the various injuries for which he had cover as being 15%. Dr Hartshorn's assessment was made by reference to the American Medical Association's Guides to the evaluation of permanent impairment (Fourth Edition) as was required by the Accident Insurance Act 1998. 
[4]
The evidence also established that the appellant had received a lump sum payment, calculated on the basis of 15% total disability, under the provisions of the Accident Compensation Act 1982. 
[5]
In the course of his decision His Honour found that Dr Hartshorn had carried out his assessment in accordance with the provisions of the Act and by proper reference to the AMA Guides. He determined that in view of the fact that the percentage of lump sum payment which had been made to the appellant was required to be deducted from the percentage of whole person impairment which Dr Hartshorn had assessed it meant that the residual percentage of whole person impairment was in fact zero and therefore the appellant did not have any entitlement to an independence allowance. 
[6]
In his application for leave to appeal the appellant contends that the Assessment was flawed or incomplete as it did not take into account all of the limitations from his injuries. 
[7]
Having regard to the findings of the Learned Judge I rule that the appellant has not raised any question of law in respect of which it may be contended that the Learned Judge was in error. His decision was made wholly on the facts as he found them and by then applying those facts to the provisions of the statute. His ruling in that regard cannot be brought into question. 
[8]
Section 165 of the Act allows for a party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law, with leave, to appeal to the High Court. 
[9]
In the decision sought to be appealed there is no ruling which it could be contended may be wrong in law. The decision so made by the Learned Judge was made entirely on the facts. 
[10]
In any event an appeal in relation to a decision of the respondent on the question of an independence allowance cannot have as its result the Court granting an allowance, but at most were it to find that there had been a flawed procedure, it would direct that the claimant be reassessed, and if necessary give directions to the assessor on matters which he / she should particularly have reference to. The same situation would apply were the matter to be referred to the High Court. As a claimant has a right to seek a further assessment after the lapse of 12 months from the date of the last assessment, the question of an appeal is rendered largely nugatory. This is particularly so in the present case as the appellant has informed the Court that he has subsequently been reassessed by a different medical assessor and that he is dissatisfied with that assessment and that matter is currently going through the review / appeal procedure. 
[11]
In all the circumstances there is no basis for the granting of leave to appeal to the High Court on the present application and such leave is refused. 

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