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Accident Compensation Cases

Hing v Accident Compensation Corporation (DC, 23/02/04)

Judgment Text

RESERVED JUDGMENT OF JUDGE J. CADENHEAD 
Judge J. Cadenhead
[1]
In this application for leave to appeal it is important, by way of background, to take into consideration that the District Court issued two related decisions in appeals brought by the appellant, namely decisions numbered 337/01, and 338/01. This application for leave is brought against the decision 338/01, but this decision is a short decision, as the bulk of the reasoning by the Judge is contained in decision number 337/01. The reason for this is that where applicable the reasons of the Judge made in decision number 337/01 are incorporated in his decision number 338/01. 
Background of facts 
[2]
In August 1992 the appellant lodged a claim for medical misadventure suffered as a result of surgery undergone in April 1991 to remove her haemorrhoids. The respondent considered the claim under the provisions of the 1982 Act and after obtaining specialist advice it determined, by decision dated 9 September 1993 that the appellant's claim be declined. This decision was upheld on review dated 9 March 1994. 
[3]
The appellant lodged an appeal against that decision and prior to the hearing of that appeal further specialist advice was obtained from which it was determined that there had been a delay in diagnosing the appellant's rectal prolapse. Accordingly, the respondent and the appellant settled the claim on the basis that the respondent accepted the appellant's claim for medical misadventure, being the delay in the diagnosing and the appellant's rectal prolapse, and a deemed date of injury was given as 22 November 1990. 
[4]
Following the grant of the cover the appellant sought entitlements both as to lump sum and earnings related compensation. In a decision dated 29 May 1997 the respondent advised that it had assessed the appellant as entitled to weekly compensation for three particular periods: 21 May 1991 to 3 June 1991, 22 February 1993 to 4 April 1993, and 4 April 1995 to 3 July 1995. In a letter containing this decision dated 29 May 1997 the respondent advised that if the appellant decided to claim an incapacity outside those periods then the respondent would have to obtain further medical certification. The appellant did not seek to review that decision. 
[5]
In 1999 the respondent received further specialist medical reports regarding the appellant's condition and her ongoing incapacity. On 12 August 1999 the respondent issued a decision determining two matters. The first decision was to the effect that the respondent had previously considered the period 22 November 1990 to 4 April 1995 and no review had been sought against that decision, accordingly it was not open to the appellant to further raise that issue. The second issue determined was that the corrective rectal surgery performed on 4 April 1995 was not related to the medical misadventure injury cover of failing to diagnose. The respondent contended that the surgery was brought about by a separate and non covered medical condition. Both these two decisions were the subject of the review, which was heard on 16 November 1999 and a review decision on 13 January 2000. 
[6]
In the review decision the Reviewer determined that no application for review had been filed in respect to the issue of the decisions concerning the periods of cover, and therefore the assessment made by the respondent could not be reconsidered, accordingly, the first issue was declined. In respect to the post surgery claim the Reviewer held that the medical evidence did not support the appellant's claim, as that incapacity did not arise from the earlier cover granted. 
[7]
However, in that review decision the Reviewer ruled that the provisions of the 1998 Act had to be applied assessing the appellant's entitlement to weekly compensation. The respondent cross-appealed against that basis of assessing the entitlement under the provisions of the 1998 Act. The substantial issues concerning the periods for which the appellant could claim were dealt with by appeal number 337/01, but the issue of whether the appropriate method of determining the entitlement was to be made under the 1982 or 1998 legislation was determined by appeal numbered 338/01, incorporating the reasons given in appeal numbered 337/01. 
Granting leave to appeal principles 
[8]
On an appeal for leave to appeal Gendall J stated the following principles in Wardle v ACC (AP 134/02 Wellington High Court 27 February 2003): 
“[5]
The principles to be applied on applications for granting leave to bring what is ultimately a third appeal are clearly stated in Waller v Hider [1998] 1 NZLR 412 (CA) and reviewed in Snee v Snee [2000] NZFLR 120 (CA). They need no elaboration by me. For leave to be granted the matter must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of further appeal. In the end the guiding principle is the requirement of justice. …  
[8]
It is well known that if a point is academic and there does not exist between these parties a matter in actual controversy which the Court of Appeal ought to decide, then leave should not be granted. That is because no useful purpose would be served as between these parties: see, for example, Finnigan v N.Z.R.F.U.(No 3) [1985] 2 NZLR 190. In my view only the first question is a matter of law but the applicant does not raise a bona fide and serious argument so as to require a case to be stated for the opinion of the Court of Appeal on a question of law only given the consistent decisions of this Court. This is not the sort of case that should take up the time of the Court of Appeal. ”
The submissions of the appellant 
[9]
The appellant submits that the determination of the entitlement of the appellant must be dealt with pursuant to the provisions of the 1992 Act and not the 1982 Act. 
[10]
The relevant portion of the decision appealed against are the reasons of Judge Beattie in his earlier decision at p.11 paragraph 46 where he states: 
“[46]
This appellant was granted cover for personal injury by medical misadventure under the 1982 Act. Although that Act was repealed by the time it came to determining the appellant's entitlements to weekly compensation, nevertheless the transitional provisions of the 1992 Act, specifically s 135(3) and (4), require that the appellant's claim and entitlement to weekly compensation be determined under the 1982 Act. Section 138(1) of the 1992 Act transitional provisions then provides for the continuing of payment of compensation under the 1982 Act as if it had been calculated under the 1992 Act. 
[47]
Thus it is that the period for which weekly compensation may still be sought by the appellant is for the period between November 1990 and April 1995, but that the application for it was not made until after the coming into force of the 1992 Act. The provisions of s 429 of the Accident Insurance Act 1998 perpetuate the transitional provisions of the 1992 Act above referred to. ”
[11]
Section 135(3) of the 1992 Act states that: 
“Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the first day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the first day of October 1992, shall have the acceptability of the claim determined under the Accident Compensation Act 1982 as if it had not been repealed. 
(4)
Where subsection (3) of this section applies, the continued entitlement of a person to rehabilitation compensation, grants and allowances shall be determined under those Acts as appropriate, but subject to this Part of this Act. ”
[12]
The appellant points to s 138 of the 1992 Act which states: 
“(1)
Where any person is, immediately before the fist day of July 1992, in receipt of or would have been entitled to be in receipt of compensation calculated under any of the provisions of ss 113, 114, 116, 117 and 118 of the Accident Compensation Act 1972 or ss 59, 60, 61, 62, 63, 64, and 88 of the Accident Compensation Act 1982, that compensation shall continue to be payable or be paid as if it had been calculated under this Act; and the personal injury by accident suffered by that person shall be deemed to be personal injury within the meaning of this Act. ”
[13]
The submission of the appellant is that s 138 deals specifically with the issue of earning related compensation and that therefore, s 135 must be subject to the terms of s 138. 
[14]
The submission of the appellant is that the learned Judge erred in presuming that the appellant had an entitlement before the first day of July 1992. It is submitted that a claim in the abstract does not satisfy the requirements of the provisions of s 135(3) and s 138(1) of the Act. 
[15]
The appellant distinguishes the case of Estate of SB v ARCIC, AP 393/97, 18 November 1998, Wellington — Doogue and Wild JJ. The submission of the appellant is grounded on the wording of s 138(1) and the submission is predicated that it must be shown that immediately before the first of July 1992 the appellant was in receipt of, or would have been entitled to be in receipt of, compensation. The additional submission of the appellant is that a deferred entitlement does not appear to have been argued in the decision. It is, the delay in the application for earnings related compensation and its relevance in respect of s 138 that is the issue here. 
The submissions of the respondent 
[16]
The respondent, while conceding that there is a matter of law involved in this case, namely, the interpretation of ss 135 and 138 of the 1992 Act, submits that the established authorities are in accord with the decision of Judge Beattie. The submission of the appellant is that following the case of Estate of SB (supra) the dicta of that case governs this particular situation. In particular, Their Honours in SB in a factual scenario closely akin to the present case, said: 
“The appellant's claim had not been accepted by 1 July 1992. In our view, the appellant comes within s 135(3): his accident has occurred before 1 July 1992 and he had lodged a claim with the Corporation before 1 October 1992. Thus, the acceptability of his claim was to be determined under the 1982 Act, as also was his entitlement to compensation: s 135(4). 
We accept that s 138 governs the appellant's continuing entitlement to compensation. However, we are unable to accept the Corporation's argument that this is simply a deeming provision. That interpretation ignores the words in s 138(1)‘ … as if it had been calculated under this Act … ’. In our view, the legislature intended those words to have a meaning, and that meaning is that earnings related compensation paid or payable under the 1982 Act, from 1 July 1992, was to be paid or payable as if it had been calculated as ‘weekly earnings’ under the 1992 Act. Section 138(2) is of no relevance, since the Corporation did not argue that interest was an adjustment to the calculations referred to in s 138(1). ”
Decision 
[17]
The appellant made a claim for cover in August 1992 in respect to a personal injury by accident in respect to surgery undergone in April 1991 for the removal of her haemorrhoids. That being the case, the determination of the entitlements has to be considered pursuant to the provisions of s 135(3) of the 1992 Act. The appellant's claim had not been accepted by 1 July 1992 and prima facie the appellant came within s 135(3): her accident occurred before 1 July 1992 and she had lodged a claim before 1 October 1992. Thus, the acceptability of her claim was to be determined under the 1982 Act as also was her entitlement to compensation: s 135(4). 
[18]
In my view, the interpretation by Judge Beattie was in accordance with this reasoning, which is the cornerstone of the dictum from Estate of SB (supra). 
[19]
I at once accept that there is an issue of law involved here, but the issue that requires to be determined is whether or not having regard to the dictum in SB whether that issue of law should be further stated as a case appropriate to be considered by a third Court. 
[20]
In my view, this issue has been determined by Justices Gendall and Wild, and I am of the view that this is not an appropriate case to state for determination by the High Court. 

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