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Accident Compensation Cases

McMillan v Accident Compensation Corporation (DC, 28/11/05)

Judgment Text

Judge J Cadenhead
The Issues 
The issues are whether the review decision dated 25 November 1994 is correct, when the reviewer held there was no jurisdiction to hear the review on the basis that the issues had already by litigated and determined, and the further issue is whether the reviewer was correct to decline to award costs to the appellant. 
Narrative of Facts 
A timeline of events is set out below: 
5-4-89: appellant consults Dr Brett for repair to incisal edges teeth 11 and 21 (upper central incisors). 
13-4-89: appellant consults second practitioner at Otago University School of Dentistry for adjustment. 
21-4-89: adjustment to restorations by Dr Brett. 
5-5-89: further adjustment by Dr Brett. Teeth at original state. 
1991: ACC claim lodged — declined 9 August 1991. 
3-4-92: application for review of ACC decision. 
15-6-92: review decision — ACC decision upheld. 
28-9-93: hearing of appeal to Accident Compensation Appeal Authority. 
5-11-93: Interim decision while further evidence sought. 
1993: Appellant complains to New Zealand Dental Council (NZDA) — Peer Review — no concerns. 
December 1993-1994: Complaints Assessment Committee — no concerns. 
1994-Appeal declined by Accident Compensation Appeals Authority. 
1994 onwards: appellant continues to seek and receive extensive dental treatment for Temperomandibular Joint Dysfunction (TMJ) — same symptoms as previously alleged from 1989/90. 
June 2002: second ACC medical misadventure claim relating to Dr Brett's treatment in April and May 1989. 
31-3-03: deemed decision letter declining claim. 
10-4-03: claim declined. 
12-5-03: appellant lodges application for review. Further evidence and submissions; determined on the papers. 
25-11-04: review decision declining claim. 
December 2004: appellant lodges appeal. 
July 2005: Dr Brett notified of appeal. 
The details of the appellant's first claim to ACC in 1990 are set out in her letter to the Corporation dated 26 October 1990. In this letter the appellant advised the respondent that when she had attended Mr Brett on 5 April 1989 (one of three dates on which she did so: 5 April 1989, 21 April 1989, and 5 May 1989), she had asked Mr Brett to repair rough edges on her front upper central incisor teeth. She then set out what she alleged to be the result of the work undertaken by Mr Brett, identifying 19 separate complaints including pain, insomnia, inability to chew, damaged occlusion, cracked teeth and an altered facial appearance. 
The claim was investigated by the respondent, and in particular was considered by a medical misadventure panel in Christchurch on 24 July 1991. 
By letter dated 9 August 1991 the respondent advised the appellant that there was no evidence of dental misadventure and that her claim was declined. 
The First Review Decision 
The first review decision dated 15 June 1992 said that the appellant had lodged a claim in July 1990 stating that she had suffered damage to her teeth, crowns, bridge, occlusion and facial appearance as a result of dental treatment performed by Mr Brett, a dentist. The reviewer said: 
“For this claim to be accepted as dental misadventure there must be evidence of personal injury and a direct causal link between that injury and the dental treatment alleged to have caused it. If these two factors are present there must also be evidence that something happened during the course of the dental treatment which should not have happened or the adverse consequences complained of must be severe and rare and outside the range of adverse consequences that might reasonably be expected following the particular treatment. … 1 am far from satisfied on the preliminary point as to the existence of injury attributable to Mrs McMillan's dental treatment. 
There is a fundamental conflict in the evidence given by Mrs McMullan and Mr Brett. I am unwilling to simply state that I disbelieve Mrs McMillan's evidence. I do not doubt that she has suffered from pain and discomfort or that she genuinely believes this is the result of the dental treatment she received. Nevertheless, I cannot accept that these concerns are attributable to the dental treatment she received. There is simply no medical or dental evidence to support her allegations. The documents produced by Mrs McMillan were of no real assistance to me and I consider there is little persuasive value in reference to comments by Mr McInnes and Mr Hookham. Professor Gray described the treatment provided by Mr Brett as minimal and his report does not support Mrs McMillan's contention that the treatment resulted in the injury to her teeth, crowns, bridge or occlusion. 
While I do not suggest for one moment that Mrs McMillan is deliberately lying, I do think her credibility is undermined by her fixation about the dental treatment she has received both from Mr Brett and from other dentists in the past. In these circumstances, I am not prepared to accept her evidence in preference to that of Mr Brett and Professor Gray who, I believe, have gone out of their way to assist her. I am accordingly of the opinion that the Corporation's decision was correct and must decline the application for review. ”
The Appeal 
This review decision was the subject of an appeal, which was heard by the Appeal Authority. The Appeal Authority issued two separate decisions under No's. 346/93 and 216/95. The first of these was an interim decision, but it recorded the content of letters from the appellant to Mr Brett, and Mr Brett's replies. It also detailed the basis of the claim, in the letter dated 26 October 1990. 
Detailed referral was made to the various professional reports, which had been provided to the Appeal Authority, and it was noted that for the appellant's claim to succeed the Authority would need to be satisfied, on the balance of probabilities, that a dental misadventure had occurred. 
The Authority directed that a further opinion be sought from a Dr Smith. 
This was later done and a final decision was then issued on 19 July 1995. In this final decision the Authority stated (page 6 and following) as follows: 
“The submissions argued by Ms Somerville at the hearing on 28 September 1993 were directed to whether the outcome of the appellant's dental treatment was within or outside the normal range of medical/surgical failure attendant upon the treatment. Ms Somerville argued that the Corporation failed to provide the appropriate terms of reference to Professor Gray in its letter of 3 December 1990 seeking his opinion. Ms Somerville argued Professor Gray's response did not address the appropriate issue, that is, whether or not the outcome for the appellant was within or outside the normal range of medical/surgical failure attendant upon the treatment. There are two reasons why I consider this kind of argument is inappropriate on the facts before me in this appeal. The first is that it seems to be assumptive that causation has been established between the 1989 and 5 May 1989 and her subsequent 19 complaints including pain, insomnia, inability to chew, damaged occlusion, cracked teeth, and an altered facial appearance. It seems to me that really none of the evidence from the several professional witnesses could be said to have established, on the balance of probabilities, that the appellant's attendances on Dr Brett between 5 April 1989 and 5 May 1989 were causative of her subsequent problem. It is left, then, for me to investigate whether, in simple terms, there was any non-culpable error on the part of Dr Brett which could be said to have been causative of the appellant's problems. Of necessity this involves an assessment of the evidence of each of the witnesses, in particular the most recent reports. 
The second reason why 1 consider the argument described is inappropriate is that the whole thrust of the appellant's case has been that Dr Brett in some way was at fault, either in negligence or in error, in the manner in which he treated her. Just one example is provided by the appellant's letter of 26 October 1990 to the Corporation in which she described her agreement with Dr Brett as being ‘ … to bond a little reinforcing on to the incisal edge without any drilling’. The appellant went on to say ‘Despite strict instructions … ’ that Dr Brett ‘ … drilled along the incisal edges and also into the palatal. He actually filled along the incisal edges and then from the incisal edge up to the cingulum on the palatal, where he filled in straight across, instead of following the original curved structure, thus completely altering the structure of the teeth’. ”
The Authority went on to address the “litany of 19 complaints” contained in the letter from the appellant dated 26 October 1990, and to review the evidence before him. 
His conclusion was that the appellant had not discharged the burden of proof that was upon her. He further stated 
“ … 1 consider there is no causal connection between the procedure performed by Dr Brett and the symptoms suffered by the appellant. All the dental evidence suggests that the procedure undertaken by Dr Brett could not be responsible for the appellant's perceived symptoms. The dental evidence is also to the effect that the procedure undertaken by Dr Brett on the appellant's incisors was minimal and could not have caused the perceived symptoms. The dental evidence does not indicate that the procedure undertaken by further evidence obtained after both review and appeal hearings does not support the appellant's case and still does not establish a nexus between the dental treatment and the perceived symptoms of the appellant. ”
Accordingly the appeal was dismissed. 
In addition to the original claim dealt with by the Appeal Authority, a complaint had been made to the Dental Council of New Zealand in 1993. The complaint was not upheld. 
The Scope of the Second Claim 
In June 2002 after having on-going dental treatment the appellant lodged a second claim in respect to the treatment of Mr Brett in 1989. The appellant's second claim to ACC, dated 14 June 2002 solely referred to Mr Brett's treatment causing her “lower jaw to be forced back.” More detail was provided in the Treatment Details Report which alleged that Mr Brett's treatment caused “severe consequences” including collapsed facial muscles, pain, movement of teeth, altered occlusion, ill-fitting crowns, and a broken bridge: that is a near identical list of problems to those that were raised in the earlier claim. 
On 31 March 2003 the respondent wrote to the appellant advising that she had a deemed favourable decision in her favour, as it had not made a decision as to the acceptance as to the claim for cover within the required statutory timeframe. 
On 10 April 2003 the respondent issued a decision revoking the previous deemed decision and declined the claim for temporomandibular joint dysfunction as a result of dental treatment received from Mr Brett in April 1989. The decision was revoked pursuant to section 65 of the Injury Prevention, Rehabilitation and Compensation Act 2001 on the basis that the claim did not meet the criteria for medical misadventure. This decision, also, gave the appellant review rights. Attached to this letter was a report summarising the issue for the claimant. The reasons given by respondent for declining the claim are set out in this Medical Misadventure Report to Claimant. This declinature can be summarised as a finding that there is no evidence to establish a causal link between the injury claimed and the repair to two teeth performed by Mr Brett in 1989. 
The Review Hearing 
The reviewer issued a decision dated 25 November 2004 and the reviewer held that she was precluded by the application of the principle of res judicata from hearing the review application on the merits. In the opinion of the reviewer the appellant's temporomanibular joint pain/dysfunction had already been the subject of appellate consideration by Mr Cartwright, and therefore she had no jurisdiction to hear that issue again on review. 
The reviewer said: 
“ … The claim was lodged in respect of temporomandibular joint dysfunction. I initially considered whether the TMJ dysfunction was a distinct injury which had never been previously been considered for cover by ACC as medical (dental) misadventure. However I have carefully read the two decisions of the Appeal Authority Mr P.J. Cartwright — 346/93 and 216/95. 
When Mrs McMillan detailed the basis of her claim to ACC in a letter dated 28 October 1990 she referred to the same description of the cause of the injury contained in the most recent Claim for Cover form dated 14 June 2002. ”
The reviewer then compared the 19 complaints referred to by the Appeal Authority and the fourth of those complaints is stated as an upset occlusion, facial muscle collapse and TMJ pain resulted. In the view of the reviewer the appellant's temporomandibular joint pain was clearly one of the complaints, which formed the basis of her first claim to the respondent. It, therefore, was one of the issues that was dealt with by the Appeal Authority. 
“ … One of the perceived symptoms of Mrs McMillan was temporomandibular joint pain. It was properly considered by the Appeal Authority as one of the perceived symptoms which had arisen as a result of Dr Brett's treatment. The Authority found there was no causal nexus between the dental treatment and any of the perceived symptoms of Mrs McMillan. 
I consider that by lodging a new claim for cover in June 2002, and by pursuing this review, Mrs McMillan is simply trying to relitigate a matter long since determined by the Appeal Authority. ”
Relevant Provisions Injury Prevention Rehabilitation and Compensation Act 2001 and Legal Principles 
Section 6 of the Injury Prevention, Rehabilitation and Compensation Act 2001 the Injury Prevention, Rehabilitation and Compensation Act 2001 provides, inter alia, 
‘decision’ or ‘Corporation's decision’ includes all or any of the following decisions by the Corporation: 
a decision whether or not a claimant has cover: 
a decision about the classification of the personal injury a claimant has suffered (for example, a work-related personal injury or a motor vehicle injury): 
a decision whether or not the Corporation will provide any entitlements to a claimant: 
a decision about which entitlements the Corporation will provide to a claimant: 
a decision about the level of any entitlements to be provided: 
a decision relating to the levy payable by a particular levy payer: 
a decision made under the Code about a claimant's complaint. ”
The respondent has a power to revise or amend a “decision” by section 65 of the Act, which provides: 
“65 Corporation may revise decisions 
If the Corporation considers it made a decision in error, it may revise the decision at any time, whatever the reason for the error. 
The Corporation may revise a decision deemed by section 58 to have been made in respect of any claim for cover, but may not recover from the claimant any payments made by it, in respect of the claim, before the date of the revision unless the claimant has made statements or provided information to the Corporation that are, in the opinion of the Corporation, intentionally misleading. 
A revision may— 
amend the original decision; or 
revoke the original decision and substitute a new decision. 
Every amendment to a decision, and every substituted decision, is a fresh decision. ”
Section 134 of the Injury Prevention, Rehabilitation and Compensation Act 2001 provides: 
“34 Who may apply for review 
A claimant may apply to the Corporation for a review of— 
any of its decisions on the claim: 
any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay: 
any of its decisions under the Code on a complaint by the claimant. ”
By section 6 of the Injury Prevention, Rehabilitation and Compensation Act 2001“claim” means a claim under section 48 of the Injury Prevention, Rehabilitation and Compensation Act 2001, which is set out below: 
Person to lodge claim for cover and entitlement 
An insured may claim against an insurer for— 
Cover for his or her personal injury; or 
Cover, and a specified entitlement, for his or her personal injury; or 
A specified entitlement for his or her personal injury, once an insurer has accepted cover for the personal injury. ”
The scope of the review is confined to the primary decision under review and it must be a decision capable of being reviewed. There are a line of decisions that have held, when the respondent reconsiders a decision that it has previously made, confirmation of its decision does not amount to a new decision, which attracts rights of review and appeal rights. It is only a decision as defined by the Act that attracts review rights. 
In the recent case of Estate of Waenga v Accident Compensation Corporation (High Court, Wellington, 13 September 2005, Gendall J, CIV-2005-485-572) this principle was affirmed. The claimant suffered brain injury at birth and lived for six years. A year after his birth, claims for accident compensation and attendant care compensation were made and accepted. The family's claim for backdating of the attendant care compensation to the birth date was initially declined on the basis of the regulations; then settled on the basis that payments at an increased amount would be made from the later date. 
There was settlement of the amount and date of backdating. Some four years later after a further assessment the family again requested backdating. The stance of the Corporation was that this had been settled. The family sought review of the “decision” conveyed in the corporation's letter, and appealed to the District Court and now to the High Court. The High Court Judge rejected the argument that the decision conveyed in the letter was a new decision. The matter had already been resolved. The fact that the Corporation had referred to review rights and proceeded to review did not open the matter for fresh consideration. No error of law had been made on the part of the District Court Judge and the appeal was dismissed. 
Gendall J adopted the observations of Ongley DCJ in Langley v ACC (119/2005) where he said: 
“ … that confirmation of a prior decision does not constitute a new decision. To hold otherwise is to cut across statutory time bars and provide a new avenue of reopening old claims. ”
He said it was clear that a claimant could not demand or insist that the Corporation reconsider or revise its original decision and that the issue had long since been determined and resolved. 
Similarly, in Butler (1/2004) His Honour Judge Barber referred to a line of authority and noted that in his case, the disputed letter “did not revise, amend, or revoke the said previous primary decision … ”. Judge Barber further discussed the concept of what amounts to a reviewable decision and noted at paragraph [9]: 
“This Court must be careful in deciding what is a decision of the respondent. Otherwise, rights of review could accrue on a never-ending basis by an unsuccessful claimant continuously writing to the Corporation and asking it to reconsider a decision which has been through to review and, possibly, the appeal procedure without success. The staff of the respondent must be able to say that such a decision will not be reopened without thereby creating fresh rights of review and appeal. In other words, litigation must come to an end when proper review and appeal procedures have been followed. ”
These principles are apt in this case. It is authority for the proposition that a reviewer and the Court can decline to hear argument, even where review rights have been given, if the facts establish that the subject of the review is not a decision to which review rights should have attached, as the issue had been previously been resolved. 
In Capper v ACC (Decision No. 236/03) I requested that (following hearing of a substantive appeal) the parties file submissions on whether the review decision was ultra vires. This was on the basis that the matter the subject of the appeal appeared to be a decision confirming a primary decision. 
The case was considered under the 1998 Act; the provisions in relation to decisions and rights of review are not materially different. I, similarly, held although the respondent had issued a decision giving the appellant a right of review, jurisdiction could not be conferred on the reviewer outside the parameters of the statute. 
In the case of Taylor (212/98), the Corporation wrote to the appellant advising that the medical information was that his ongoing incapacity was not as a consequence of any personal injury by accident, and that in those circumstances his entitlements to weekly compensation would cease on 31 January 1997. This letter gave the appellant advice that if he did not accept that decision he had a right of review, which must be exercised within three months. Through an oversight the three-month period elapsed without any action being taken. When the oversight was discovered it was sought that the Corporation reconsider the matter even though the request for review was out of time. The Corporation advised that it could do nothing as the statutory time had elapsed. The solicitors for the appellant requested that the Corporation reconsider its decision and that it revoke its decision to cancel entitlement and substitute a new decision. The Corporation replied advising that its earlier decision remained unchanged. The solicitors for the appellant filed an application for review of this latest decision. 
The Corporation did not accept that this was a fresh decision and argued that the later letter did not confer review rights. It was submitted that this letter merely reiterated the status quo. It was held that the first primary decision conferred review rights, but these lapsed because of the lapse of time. The application that the Corporation should reconsider its decision and the subsequent declinature did not amount to a fresh decision, and accordingly give no review rights. The Judge held that only an amended decision or a substituted decision that constituted a fresh decision was capable of being the subject of review. 
The appellant argues that sections 134 or section 65 are fresh decisions and hurdle the bars of issue estoppel or estoppel by record. The respondent and third party argue that if the review rights were accorded by mistake that does not help the appellant, if the primary decision should never have been because of the findings of a higher authority. Again, if that is not the case, the respondent in effect by confirming its original decision that was confirmed on review and appeal has never made a fresh decision. 
Estoppel or Waiver 
However, it is important to analyse whether the mistaken conferring of the review rights by the respondent and the subsequent review hearing without protest by the parties to jurisdiction, conferred by the process of estoppel or waiver, gave any power in the reviewer to hear and determine the issue? 
The jurisdiction to review a primary decision is conferred by statute and no matter what action the respondent or the reviewer takes, jurisdiction cannot be conferred outside the parameters of the statute. No action taken by the respondent or the reviewer can vest a jurisdiction, which the Act does not give. The reviewer does not have any power to act, other than the power given by the Act (see Steinborn v Minister of Immigration (M1334-SW01 Auckland High Court, O'Regan J, 20 September 2001)). 
I am aware that there are authorities such as Wells v Minister and Local Government [1967] 2 All ER 1041 and Re L (AC) (an infant) [1971] 3 All ER 743 and the principles to be drawn from these cases are: 
The general rule is that a statutory body cannot be estopped or waive its statutory duty or confer upon itself a jurisdiction that it does not have. 
However, in certain cases a statutory body may be estopped or waive a mere technicality of a procedural nature. 
In certain cases there may be an estoppel by representation, but that estoppel could not confer a jurisdiction that does not exist, because of the terms of the relevant enactment. 
Applying these principles to the present case neither the actions of the respondent in apparently giving the appellant a right of review, and the lack of objection raised at the review hearing can create a jurisdiction, where one did not exist, in the face of the statute. 
It is only an amended decision or a substituted decision that constitutes a fresh decision capable of being the subject of review. 
It is submitted that no new grounds were put forward by the appellant, or any new basis for the claim. The claim and further evidence tendered by the appellant merely sought to relitigate the earlier decision made by Appeal Authority. As such it is submitted that the second claim amounted to a re-submission of the original claim, citing the same cause of injury and the same adverse consequences. The only difference was that both ACC and the appellant had added new evidence to their arguments — none of which, however, altered the substance of the claim or the basis of the decision made. 
While the respondent did present the appellant with review rights following the decision on the second claim, it would appear that this should not have been done. Rather than treating the response to the claim as a “fresh” decision it should have been treated as a decision affirming the original decision on the claim. 
Issue Estoppel 
A second issue that arises is whether the appellant is precluded from bringing this appeal, because the issue has been previously decided. The starting point for any consideration of res judicata or issue estoppel is Henderson v Henderson (1843) 3 Hare 100. In that case Wigram VC at p.100 said: 
“Where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. ”
It is clear that the doctrine of issue estoppel applies to judicial decisions in an administrative context. Judge Sheppard André v Auckland Regional Council [2003] NZRMA 42 has applied the rule to a ruling of the Environment Court. 
In the case of Mitchell v Accident Rehabilitation and Compensation Insurance Corporation (Decision No. 220/97 dated 5 November 1997) Judge Beattie considered the statutory regime and in particular the power of the Accident Compensation Corporation to revise its decision. His Honour noted that there was a power vested by the legislation in the Corporation to make a decision in respect to a claim lodged and to give notice of its decision to the claimant. There was then a further power for the Corporation to revise any decision made in error, whether by reason of mistake or by reason of false or misleading information, or by reason of fresh evidence. The Corporation might amend that decision or revoke the decision and substitute a new decision. The statutory scheme then envisaged a right of review of that decision, which was binding upon both parties. From the determination of the review there was a further general right of appeal given to the District Court, and then consequent upon that decision an appeal on a point of law only to the High Court. 
Further, his Honour in an earlier decision Eason v Accident Rehabilitation Compensation Insurance Corporation (Decision No. 202/97, dated 26 September 1997) considered the aspects of the plea of issue estoppel arising at an attempt to relitigate an earlier appeal decision. In that case His Honour reviewed the legislation and noted that the appeal hearing was a rehearing. While the appellant in that case was entitled to have a fresh decision and put in a fresh application for a claim, he was not entitled to reopen the issue of compensation payments that allegedly had been accrued down to the date of the earlier appeal. 
The Corporation could not by making a fresh decision circumvent the earlier review and appeal findings. It was not by this procedure entitled to revisit the same issue that had been determined earlier by the appeal proceedings. 
These decisions of Judge Beattie admirably show that the power to revise or amend a decision is vested in the respondent only to the extent that it can revise or amend its own determinations. The power to amend or revise does not give the respondent an ability to revise or amend decisions upon review or upon an appeal. Clearly this must be the case, as if the respondent had an ability to revise or amend an appeal decision in favour of an appellant, it would make the appeal finding nugatory. Conversely, in respect to a review or appeal decision the same principles apply to findings against an appellant. 
It is clear that the legislation contemplates a decision that may be reviewed within three months, and that review hearing giving a right of appeal to the District Court, again within a specified period of time, and then a final appeal to the High Court on a point of law. 
The fundamentals of a decision are that a particular issue is decided, and that issue is conclusive subject to the right of a review within the three month period of time. This, as it were, is a statutory form of issue estoppel. Guidance can be had from considering how the law concerning issue estoppel is developed. Issue estoppel is concerned with the prior resolution of issues and precludes a party from contending the contrary of any precise point which has once been distinctly put in issue and been determined against the other party. 
The underlying principles upon which the doctrine is based is the balance between the finality of litigation as a principle on the one hand, and individual justice on the other. What is involved is a careful analysis of what issues have previously been decided. 
The appellant has argued that she has a right to a review pursuant to section 134 of the legislation and that the failure to give her this right infringes the principles of natural justice given by section 27 of the New Zealand Bill of Rights Act 1990. 
The principles of issue estoppel and estoppel by record are based upon the principle of justice that there should be finality in the conduct of litigation. I am of the view that the issues sought to be litigated were previously determined by a review hearing and confirmed on appeal years ago. The primary decision sought to be litigated in respect to the present appeal in effect was a denial of statutory cover, essentially on the same basis that had previously been determined. 
The fact that review rights were accorded to the appellant by mistake does not advance her position. I am of the decision that having regard to the principles that I have set out, and having compared and analysed the issues, that the appellant was estopped from bringing the present claim. The reviewer, was accordingly correct to decline jurisdiction as there was no competent “decision” to review. Similarly, the review officer was acting within her discretion to refuse costs. 

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