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Accident Compensation Cases

Park v Accident Compensation Corporation (DC, 20/05/04)

Judgment Text

J D Hole Judge
The appellant has applied for leave to appeal to the High Court against the decision of His Honour Judge M J Beattie issued on 5 March 2004. 
The issue in that appeal was whether the medical assessor had erred in that he failed to assess the capacity of the appellant to undertake all the work tasks identified in the occupational assessment in accordance with section 108(3) of the Act. 
It was suggested that he had failed to consider the appellant's mental disabilities including memory loss and poor concentration when reaching his conclusion. These mental factors were described as being “common” to those job options identified by the occupational assessor as being suitable for the appellant. 
The learned Judge determined that the word “common” was used by the occupational assessor as meaning “frequently encountered”. He held that the medical assessor did take these factors into account in reaching his conclusions. 
Application for leave to appeal 
Section 162 of the Act states; 
“A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. ”
Thus appeals to the High Court must involve a point or points of law. There is no appeal to that Court on factual matters. 
The proper approach to the issue as to whether leave to appeal should be granted was stated by Doogue J in Impact Manufacturing Ltd v Accident Rehabilitation and Compensation Insurance Corporation and Stewart Burns (High Court, Wellington, AP 266/00, 6 July 2001). His Honour said that before special leave to appeal was granted there had to be a point involved in the proposed appeal. This point had to be capable of bona fide and serious argument. His Honour then went on and considered what was a point of law: 
“What is a point of law? 
Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA); Edwards v Bairstow [1995] 3 All ER 48, 57; P & O Services (NZ) Ltd v ARCIC
Even where, as in this case, an appeal is limited to questions of law, a mixed question of law and fact is assailable as a matter of law: CIR v Walker, 354; P & O Services (NZ) Ltd v ARCIC, 6. [7] It is well settled that a decision-maker's treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the decision: Edwards v Bairstow, 57. 
The Court of Appeal in Lang v Eagle Airways Ltd [1996] 1 ERNZ 574, 576, cited Edwards v Bairstow in support of the following statement: 
If those conclusions were not reasonably open to the Judge then this Court can rule, as a matter of law, that they are unsustainable and should be set aside …  
Whether or not particular evidence is relevant to a particular issue is a question of law: Ogilvy & Mather (New Zealand) Ltd v Turner [1996] 1 NZLR 641, 651-652. ”
The question which arises here is whether there is a point raised which is capable of serious argument. 
In his medical assessment dated 18 March 2002 under the headings of “Medical History” and “Social History” the medical assessor did refer to the “common” mental factors. In these circumstances, while he did not refer to them again when describing the various job options in relation to the appellant's suitability for them, it is inconceivable that he did not take them into account. The learned Judge said in his decision that he found that the medical assessor did turn his mind to them and came to his decision accordingly: see paragraph 14. (I accept that paragraph 14 is a little equivocal in its wording, but I had no difficulty in reaching this interpretation). In these circumstances it is difficult to comprehend what the purpose of this intended appeal is. Other than saying the learned Judge failed to turn his mind to the issue (which is incorrect), the submissions in support of this application are devoid of enlightenment. 
A glimmer of light emerges from the appellant's submissions in reply. Comments made by the learned Judge in Inwood (43/02) and Bidois (318/01) have been contrasted with what is claimed is a different view espoused by His Honour Judge Barber in Kidd (53/04). Upon analysis, the appellant is claiming that Judge Barber thinks that detailed reasons are not required for the medical assessor's opinion whereas Judge Beattie requires them. I disagree with that analysis. While the words are different, each Judge agrees that when giving an opinion on job suitability, information sufficient to justify that opinion is necessary and that information should relate to factors identified as characteristics of that job option by the occupational assessor. The assessment should be sufficient to inform both a claimant and the Corporation how the medical assessor reached his conclusion: however, detailed reasons may not be necessary. 
In this case, the medical assessment contained sufficient information to inform both appellant and the Corporation as to how the medical assessor reached his conclusions. That information did relate to matters identified in the occupational assessment. His Honour judge Beattie found accordingly. 
As the application does not identify a point capable of serious argument, leave to appeal is declined. There will be no costs. 

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