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Accident Compensation Cases

Stockan v Accident Compensation Corporation (DC, 29/09/06)

Judgment Text

RESERVED JUDGMENT OF JUDGE D A ONGLEY 
Judge D A Ongley
[1]
The basis for this appeal has been overtaken by a favourable decision by the respondent. Nevertheless, Mr Grove for the appellant sought a hearing in order to ventilate complaints about the review process. The Court does not have power to provide the kind of remedy that the appellant seeks because it is limited by s 161 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 to dismissing the appeal or modifying or quashing the review decision. The subsequent decision by the Corporation in favour of the appellant has rendered the appeal question redundant or moot. 
[2]
Certainly this is a case where the final decision was unnaturally delayed. The appellant argues, with some justification, that the Corporation adopted a false premise that the appellant's conviction for failing to provide information disqualified him from receiving weekly compensation. A further barrier to weekly compensation was an erroneous test used by the Corporation in deciding that the appellant had regained capacity to work. The Corporation assessed his capacity with reference to a job that he had taken up in 1995 after his injury, not the job in which he was employed in 1989 at the time of his injury. But the picture was complicated by the need to determine whether there had been a new injury causing incapacity in 1995 or whether the new incapacity was caused by the 1989 injury. Finally, there was inordinate delay in obtaining the relevant medical opinions and reaching a favourable decision. 
[3]
The Court cannot reach any conclusion on matters that have been disputed by the Corporation, because the Corporation is not called upon to argue them after the appeal question has been overtaken by the decision granting the appellant arrears of weekly compensation. Despite Mr Grove's urging, this is not a decision in which the Court can catalogue the alleged deficiencies and make any recommendation to avoid trouble in the future. To go further would risk criticism of the appellant's arguments, without a balancing criticism of the respondent's position. 
The review 
[4]
ACC made a decision in 1996 to cease paying weekly compensation to Mr Stockan when the Corporation was not satisfied that he continued to have incapacity. After a further application for weekly compensation in December 2003, the Corporation made a decision on 25 September 2004, again declining to pay weekly compensation. 
[5]
Before the September 2004 decision, the appellant complained to the Ombudsman who replied on 8 October 2004 declining jurisdiction to deal with questions that could be the subject of the statutory review under the Injury Prevention, Rehabilitation, and Compensation Act. The Ombudsman was entitled to comment on matters that the appellant could not take to review. The Ombudsman was prepared to consider a question whether the Corporation failed unreasonably to make a decision about reinstatement of weekly compensation thereby barring the appellant from the remedy of review. However the Corporation made the decision of 25 September 2004 while the complaint was in the hands of the Ombudsman. That created a right of review, and the Ombudsman decline to make recommendations on the ground that the appellant had a statutory remedy. 
[6]
The September 2004 decision opened up to review the whole basis for refusal of weekly compensation, including an aspect of the Corporation's 1996 decision. The 1996 decision had been made on the basis that he had capacity for his 1996 work as a groundsman. It failed to address his incapacity for his pre-injury employment in 1989 as a small engine mechanic. 
[7]
The Reviewer delivered a 22 page decision on 8 June 2005. The review was from the September 2004 decision, and the Reviewer identified the 1989 injury as the basis for the weekly compensation question that was claimed and refused. The Reviewer recorded that on 1 February 1995 Mr Stockan had advised ACC that he had commenced work and ACC stopped weekly compensation. That was followed by an injury from a fall on 2 April 1995 causing acute lower back strain. Mr Stockan had been working as a groundsman handyman and had been receiving earnings from employment while also receiving weekly compensation. Further investigation showed other earnings that Mr Stockan had received while on weekly compensation. An overpayment was raised and ACC advised Mr Stockan by a decision on 2 September 1996 that he had the capacity to return to his pre-accident occupation and was no longer incapacitated for accident compensation purposes. At the same time ACC invoked the suspension provisions under s 73 of the 1992 Act. 
[8]
At that stage, Mr Stockan did not apply for review. He was prosecuted for offences under s 166 of the Accident Rehabilitation and Compensation Insurance Act 1992. On conviction, he was ordered to pay a limited amount of reparation. 
[9]
During 1999, he obtained medical reports concerning the injury caused by his 1989 accident. His general practitioner, Dr Hewitt, considered that Mr Stockan had never recovered from that injury and had only been able to work on an intermittent basis. Dr Hewitt provided further material to ACC in 2003 and referred the claim to his local MP. ACC maintained that Mr Stockan had no entitlement. An opinion from Dr Kelman in May 2004 gave significant support to the claim. Dr Kelman linked Mr Stockan's ongoing back condition to his 1989 injury and said that he did not have the capacity to resume his 1989 pre-injury employment. Dr Hewitt supported that view. 
[10]
Counsel for ACC advised the Corporation that the convictions did not necessarily mean that the claimant had lost entitlement. The Corporation eventually made the September 2004 decision on the grounds that Mr Stockan was not an earner when he lodged his current application, so that there was no loss of earnings. The reason for this strange and apparently misguided decision was because it had been wrongly directed to a 2003 medical certificate as describing the injury for which the weekly compensation claim was being made. Despite the medical information that the Corporation had received, the point that the claim related to a 1989 injury was not appreciated when making the decision. 
[11]
The Reviewer recorded that ACC then focused on the 1996 claim and considered that there was no current and contemporaneous medical information to prove incapacity from 2 September 1996. ACC apparently still took the view that the convictions for failing to provide information barred Mr Stockan's claim. 
[12]
What had apparently been persistently overlooked, was that the real question was whether Mr Stockan had ever had the capacity to resume his pre-1989 occupation. At the review, the Corporation advanced an argument that the 1996 convictions confirmed ACC's position that Mr Stockan had returned to his pre-injury employment and therefore he could not demonstrate incapacity. In the context of the material before the Court that argument seems to have been groundless, but it was the kind of proposition that had guided the Corporation's decision-making. 
[13]
The Reviewer considered that the claim had also been complicated by attempts to broaden the review to address issues on another claim and to involve other parties. The Reviewer went on to look at cl 32(1)(b) of the 2001 Act requiring a weekly compensation claimant to have been an earner immediately before his incapacity commenced. The problem was that the Corporation failed to address the 1989 incapacity and had only focused on the 2003 incapacity. ACC had never done an evaluation of the evidence of incapacity since 1989. The Reviewer came to the conclusion that “the chain of causation question has not yet been properly considered”. The Reviewer then issued directions to the Corporation to consider the question and to issue a new decision. 
[14]
Around 1995 and onwards, Mr Stockan had experienced mental stress and had eventually obtained treatment. He had not been equal to the task of challenging the Corporation's decisions at an appropriate time. Mr Grove contended that the failure to furnish information, for which Mr Stockan had been prosecuted and convicted, was a relatively innocent situation of muddlement. 
[15]
If full argument had been heard on this appeal, the Court would have been reluctant to decide the weekly compensation claim itself. As the Reviewer had pointed out, the Corporation had never asked the right questions and had still to make a considered decision. The Court may well have been driven to agree with the Reviewer, which would not have helped the appellant. 
[16]
The Corporation eventually made its decision. There had been some delay in getting further relevant medical reports, partly because Mr Stockan, anxious that the Corporation might once again be going to skew its investigation, began to place conditions on when and how he would submit to clinical examination. In light of the history, it can easily be understood that he was concerned that his claim could be derailed as it had been before, and he apparently felt that there was a hidden agenda to deny his claim irrespective of evidence. 
Discussion 
[17]
The above is a very brief history of the claim which was set out in more detail by the Reviewer. By the time the claim went to review, damage had already been done by long delays and mistakes about the proper basis for the claim to be considered. Mr Grove had complained to the Ombudsman and to the Speaker of the House, but those steps were not productive and not suited to resolution of the claim. 
[18]
This appeal is not a forum for examining the conduct of the Corporation because there is no question about the review that can be argued. The Reviewer did not make findings against the appellant. The Reviewer directed the Corporation to address the right questions and make a decision, which it did. Consequently there is nothing in the review findings, nor in the Reviewer's decision, that remain to be argued. 
[19]
In hindsight, it was unfortunate that Mr Stockan did not appeal against the 1996 decision, or did not provide full information about his earnings and apply once again for weekly compensation. He may have been deterred by a pervading belief that the convictions put an end to his entitlement. In hindsight, he should have renewed his claim to weekly compensation much earlier, and the Corporation should have considered it in the context of his continuing incapacity for his 1989 pre-injury employment. The Corporation should not have considered his conviction as a bar to obtaining weekly compensation and should not have persisted in focusing on pre-injury employment in 1995, or on lack of earnings at the time of lodging a certificate of incapacity in 2003. 
[20]
Mr Grove may well be right in his submissions that the Corporation persistently addressed the wrong issues. The appellant has attempted to go a step further and to allege that the Corporation's officers were so stubbornly opposed to his claim as to treat it with positive bias or wilful incompetence. The Court cannot conduct an inquiry of that kind or presume to impugn administrative decisions that are not a live issue in an appeal. In this appeal, counsel for the Corporation can legitimately stand back and say that the point of the appeal has been overtaken by a new decision and there is no longer an issue to be argued. The test is whether this Court has any power to make any declaration or grant any relief that could follow from the arguing of the appeal. The answer is that it does not. There is no live issue. For completeness, I note that similar questions were considered by Judge Cadenhead in Taylor (39/06) and by Judge Barber in Estate of SH (166/06)
[21]
The Corporation has its own governance and management policies that endeavour to ensure the correct processing of claims. The Corporation's own administrative checks are supposed to protect the rights of claimants. The Corporation's new decision belatedly recognised the validity of his claim. But at the same time it deprived him of the opportunity of challenging, in this forum, the history of the Corporation's treatment of the claim. If the appellant is able to point to a specific failure by Corporation staff that was more than a mere mistake and reflected incompetence or bias, then it is open to the appellant to refer the matter to the Corporation's head office and seek an explanation. 
[22]
As to the review, I cannot see any ground for criticism of the Reviewer's decision. It was within the discretion of the Reviewer to decide whether to refer the matter back to the Corporation, or to exercise the Reviewer's own powers of investigation and make a decision on the claim itself, rather than to give directions. 
[23]
Part of the review was not recorded, apparently because the microphone was switched off. While that was unfortunate it can only be regarded as an unintended mistake. The Reviewer would have had absolutely nothing to gain and any suggestion that it was deliberate does not deserve consideration. The appellant's written submissions also pointed to comments by the Reviewer that Mr Grove submitted to this Court showed bias or some form of incompetence. Such an argument is inflated and inappropriate. The Reviewer was fully entitled to make certain observations on aspects of the claim. I have looked at the passages mentioned in Mr Grove's submissions and find them unremarkable in the context of the overall decision. It is possible that there might be a viable argument that the Reviewer could have been wrong in his view of the effect of observations by the Court in Thomas (330/04). But Mr Grove went a step further and put that forward as demonstrating unfairness by the Reviewer, and a breach of the Reviewer's duty of independence. Mr Grove's submission is untenable. If an observation by a Reviewer is wrong, it can be put right on appeal. 
Interest 
[24]
The appellant asks for interest on arrears of weekly compensation. That is not an unreasonable request, but interest on arrears is closely regulated by the Act. Under s 144, the Corporation is not obliged to pay interest unless it fails to make the required payment of arrears within one month of receiving all information necessary to enable the Corporation to calculate and make the payment. 
[25]
The obligation to pay interest depends on fact questions, mainly to identify what information was necessary and when the Corporation received that information. While the questions may appear simple, the answers have often raised difficult arguments. Payment of interest is certainly not a question that the Court can decide on the present application. First there needs to be a primary decision by the Corporation to pay or decline to pay interest in relation to all the arrears or different parts of the arrears. It is regrettable that the claimant has to wait for yet another decision before seeking an appeal remedy but that is dictated by the Act. 
[26]
The appeal is now dismissed because the Court has no jurisdiction to decide any of the questions raised by the appellant. 

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