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Accident Compensation Cases

Ah-Sin v Accident Compensation Corporation (DC, 11/08/03)

Judgment Text

DECISION OF JUDGE J. CADENHEAD CONCERNING APPLICATION FOR LEAVE TO APPEAL 
Judge J. Cadenhead
[1]
This is an application for leave to appeal against a decision of Judge Beattie dated 20 December 2001. 
[2]
The issue at the centre of the case was whether the respondent was correct, by its decision of 19 September 2000, to determine that the appellant had retained a capacity to work. In 1987 the appellant was a roofer and suffered an injury to his lower back. On 3 March 1999 the respondent made a decision that the appellant had a capacity to work. This decision was reviewed. A review decision dated 29 June 1999 upheld the primary decision of the respondent. This decision was not taken to appeal. 
[3]
Thereafter, a further medical report was obtained: firstly, from Dr Kenny, occupational physician, who was asked to assess the appellant in respect of the chronic back problems and to advise on the relationship of that condition to injury or degenerative disease. Dr Kenny reviewed the job options, and concluded that in respect of three, there was no injury related reason why the appellant should not undertake 30 hours work per week. On the basis of this advice the respondent advised the appellant that it considered he still had a capacity for work. 
[4]
The appellant sought a review and at the review hearing, further evidence was provided by two specialists. The first, Mr Thorne, stated that the appellant's present level of incapacity was such that he was not able to engage in his previous occupation. The second, Dr Doube, reached a similar conclusion. 
[5]
In a decision dated 18 April 2001, the reviewer relied on Dr Kenny's report and found there was no evidence that the appellant's incapacity for work had deteriorated since a previous determination. He upheld the respondent's decision. 
[6]
On appeal to the District Court, the appellant placed a further medical report before the Court from Dr Hancock, pain specialist. Dr Hancock disagreed with Dr Kenny, especially on the significance of disc degeneration being at the root of the appellant's problem. 
[7]
The relevant provision for determining the appeal was a consideration of s 89(5) of the Accident Insurance Act 1998. The decision of 3 March 1999, upheld on review, was binding on the parties until such time as a further assessment might be made, such as deterioration within the meaning of s 89(5) of the Act. 
[8]
A threshold issue in respect to the application of s 89(5) was the requirement of the insured to prove on a balance of probabilities that his capacity for work may have deteriorated since the previous determination. If that point was reached, then the second stage would be the carrying out of assessments to determine the capacity to work in the manner provided by ss 93-100 of the Act. The respondent contended that the appellant had not reached this threshold requirement. The Court had to decide whether the appellant had reached this threshold requirement. 
[9]
Judge Beattie after a consideration of all medical reports on the facts came to the view that there were no reasonable grounds for a reasonable belief the appellant's condition had deteriorated. 
The Submissions of the Appellant 
[10]
In essence the submissions of the appellant were that Judge Beattie either misapplied the facts or drew the wrong inferences of fact, when he determined that the threshold had not been reached to set in chain another work capacity assessment on the basis of deterioration. The appellant argued that there was no factual basis for the findings that he made or that there was no factual basis for the inferences that he drew. 
[11]
The respondent resists this application upon the grounds that the appellant is endeavouring to raise issues of law from matters of fact that have been concluded against him. 
Conclusion 
[12]
In my view, Judge Beattie identified the correct issue and in determining the issue he considered all medical reports and drew the inferences that were available to him. As he said the Court had to be placed in the position to determine whether or not the evidence that the respondent had provided a reasonable belief that the appellant's capacity for work may have deteriorated since the original assessment. Judge Beattie considered after reviewing the medical evidence that the evidence did not go the necessary distance. I have reminded myself of the principles decided in Impact Manufacturing Ltd v ACC (AP 266/00). I note that in certain cases a decision-maker's treatment of the facts may amount to an error of law. In some cases there is no evidence to support the decision, the evidence is contrary to the decision or the evidence contradicts the decision. 
[13]
I conclude that the decision of Judge Beattie was clearly one of the application of facts to the particular issue confronting him. The decision of Judge Beattie does not come within the prescription set out in Impact Manufacturing. I cannot see that there are any issues of law capable of being stated here. Accordingly, I decline leave to appeal. 

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