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Accident Compensation Cases

Huntley v Accident Compensation Corporation (DC, 27/09/06)

Judgment Text

RESERVED JUDGMENT OF JUDGE J. CADENHEAD 
Judge J. Cadenhead
The Course of the Hearing 
[1]
There was no appearance for the appellant. Mr D. Tui appeared for the respondent. I indicated that I would write a decision on the papers. 
The Issue 
[2]
The issue is whether a letter from the Accident Compensation Corporation dated 11 March 2005 is a decision capable of review under the review and appeal process provided by the legislation. For the sake of convenience I set out herewith the provisions of the letter dated 11 March 2005: 
“I acknowledge receipt of your note dated 8 March 2005 and a second note that appears to have been attached. Both were received on 9 March 2005. The notes cover aspects of two of your claims but I will deal with them contemporaniously [sic]
To clarify the position regarding your advocate I can confirm that you are correct in saying that you can choose whoever you wish as an advocate. However, ACC has advised Mr McLaughlin that it does not wish to deal with him. 
This is an administrative matter and does not give rise to any right of review. 
Regarding your change of case manager I certainly do not recall mentioning anything about Oringa being on long term stress leave. What I did say was that she was on sick leave at the time we spoke and that she would then be taking a period of annual leave. The period of annual leave had been planned for some time and included the time surrounding the event recorded in the newspaper. Oringa remains on leave at the present time. 
I certainly do not agree that your new case manager should sign any form of declaration relating to having read all your claim files or be fully aware of all the issues you wish to have addressed. I would, however, expect that she will address any particular entitlements which you might still have available. 
My understanding of the issues you have now raised are: 
1.
I believe that your request for a detailed Neurology assessment was discussed when you met with Elaine Reilly form [sic] the Medical Misadventure Unit. At that time she reiterated that your claim H2107750003 had been declined and that while you were free to seek whatever specialist assessments you wish ACC would not be prepared to arrange or fund these. 
2.
Your new case manager Leanne Wagner will look into the issue of your claim for a housekeeper. She will need to research when this matter was first considered and what the outcome of any deliberations made at that time were. She will contact you to discuss this. 
3.
In regard to a reassessment of your independence allowance it appears an appointment was cancelled and that a pack was send to you in January 2005 for a reassessment but this did not proceed. Again Leanne will clarify the situation with you and then look at the question of reassessment. 
I believe that this addresses all the issues you have raised. There do not appear to be any issues where further action is necessary from this office. 
I am also providing you with copies of your files H2107750003 and H2107750006 completing your information request. ”
[3]
It is submitted for the respondent that the advice provided by the Corporation in its letter of 11 March 2005 was of an administrative nature only, and did not concern any entitlements under the relevant legislation. 
Narrative of Facts 
[4]
The appellant sustained injuries in an accident on 22 November 1977. The appellant received cover and entitlements for the injury including lump sum awards under s 119 and 120 of the Accident Compensation Act 1972. 
[5]
According to a review decision on 8 December 1995, the appellant had received a 15% permanent disability award under s 119, and as a result of that review decision a maximum award of $10,000 under s 120. 
[6]
In 1998 the appellant was assessed for the independence allowance entitlement. The independence allowance assessor, Dr Wilson, assessed the appellant as having a 10% whole person impairment. The earlier lump sum payment was deducted from the whole person impairment percentage resulting in a nil entitlement. A decision was issued to that effect by the Corporation on 24 September 1998. This decision was challenged on review, but the review was dismissed. 
[7]
In 1994 the appellant lodged a claim with the respondent for medical misadventure. The appellant claimed that he had suffered arachnoiditis as a result of a myelogram undertaken during surgery in 1979. 
[8]
The respondent investigated the claim. The respondent obtained comment from Mr Russell Worth, neurosurgeon. The medical information was also considered by the Medical Misadventure Advisory Committee. Following such investigation, the respondent issued a decision on 28 March 1996 declining the claim for medical misadventure on the basis that there was insufficient evidence that the appellant had arachnoiditis or that the symptoms complained of by the appellant were a consequence of the dye that had been left in the brain following the myelogram. 
[9]
The appellant applied for a review. The reviewer issued a decision on 2 September 1999 upholding the Corporation's decision. 
[10]
The appellant filed an appeal in respect of the independence allowance decision and the medical misadventure decision. The appellant was represented at the appeal by John Miller Law. 
[11]
A decision was issued by the District Court in early 2001 under No. 4/2001, by Barber DCJ. In respect to the medical misadventure claim, the Court noted at paragraphs 11 and 12 on p.3: 
“[11]
While it is the belief of the appellant that there is a causal association between the myelogram and the injury or some of the injuries he suffered, this is not established on the medical opinion. Even if a causal association were established between treatment and injury, the evidence in the present appeal does not establish that there has been a medical error. Nor does the evidence establish that there is a medical mishap and that it is neither shown that the claimed injury was a rare consequence of the treatment, nor a severe consequence. 
[12]
In any case, as already mentioned, Mr Miller seemed to concede the medical misadventure issue. ”
[12]
In respect to the independence allowance issue, the Court noted at paragraph 15: 
“Mr Miller referred to the appellant as being adamant that his present incapacity is due to medical misadventure, but to the ACC Medical Misadventure Committee and the reviewer not accepting that but appearing to accept that the medical evidence indicates that the appellant's incapacity was due to the physical and mental consequences of the said 1977 accident. Mr Miller then opines that there is nothing to be gained by a finding of medical misadventure as full entitlements will flow from the 1977 accident. ”
[13]
The District Court considered the arguments from both parties, as well as the independence allowance assessment by Dr Wilson, and determined that there was no basis to quash the respondent's independence allowance decision. 
[14]
In 2002 the appellant contacted the Corporation to request that further information be considered by the respondent in relation to the medical misadventure decision. Mr Phil Heatley, the Whangarei Member of Parliament, made approaches to the respondent on the appellant's behalf. The respondent's Medical Misadventure Unit considered the further information and wrote to Mr Heatley on 3 June 2003 that the symptoms that the appellant described were more likely than not caused by the accepted personal injury caused by the accident claim of 1977 and not caused by adhesive arachnoiditis or treatment by a registered health professional. The letter said further that even if the circumstances were found that the respondent could change its decision on cover, the entitlements to an independence allowance were based on the assessments of Mr Huntley's disability, and it was unlikely that they would affect any entitlements. The appellant requested that a new decision be issued with review rights. The respondent indicated that there was nothing on which to revoke the decision. 
[15]
Further correspondence took place, and on 29 November 2004, the respondent's Medical Misadventure Unit indicated that if the appellant were to produce evidence that the drops of Myodil were causing adhesive arachnoiditis, the claim would then have to meet the tests of being both rare and severe in the absence of medical error. However, the respondent would be prepared to consider this further evidence. 
[16]
The respondent's file was subsequently closed and archived. The file was re-opened in early 2005. 
[17]
On 14 February 2005, Mr Barry Davis, branch manager for the respondent's Whangarei branch, wrote to the appellant on the 1977 claim to advise inter alia that the respondent was not prepared to recognise any approaches made by Eric McLaughlin and Para Legal Services on the appellant's behalf in a capacity as advocate. 
[18]
The appellant responded on 8 March 2005 expressing concern, inter alia, regarding the respondent's refusal to recognise Mr McLaughlin. The appellant also wrote to the respondent on 9 March 2005 requesting a neurological assessment of the appellant's nerves and an MRI scan of the spine and head. 
[19]
The respondent wrote to the appellant on 11 March 2005, and this is the letter that is the consideration in this appeal. 
[20]
An application for review was made by the appellant on 13 March 2005. The respondent's letter of 11 March 2005 was identified as the decision from which the review was brought. The reasons for the application for review read: 
“That ACC should pay for a neurology assessment as they have failed to assess what my residual (?) are. ”
[21]
The relief sought by the appellant read: 
“That I get my neurology assessment and any other assessment that is needed to get a better picture of my (?), and how ACC can full their responsibility to me as a claimant. ”
[22]
The review hearing was conducted on 15 June 2005. The appellant was represented by his advocates, Helen and Eric McLaughlin. The reviewer issued its decision on 16 June 2005 dismissing the review on the basis that the Corporation's letter of 11 March 2005 was not a reviewable decision and therefore the reviewer did not have jurisdiction to consider the review. 
Legislation 
[23]
Section 134(1) of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the 2001 Act”) provides: 
“134. Who may apply for review 
(1)
A claimant may apply to the Corporation for a review of - 
(a)
any of its decisions on the claim: 
(b)
any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay: 
(c)
any of its decisions under the Code on a complaint by the claimant. ”
[24]
The term “decision” is defined at s 6(1) of the 2001 Act as: 
Decision or Corporation's decision includes all or any of the following decisions by the Corporation 
(a)
a decision whether or not a claimant has cover: 
(b)
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): 
(c)
a decision whether or not the Corporation will provide any entitlements to a claimant: 
(d)
a decision about which entitlements the Corporation will provide to a claimant: 
(e)
a decision relating to the level of any entitlements to be provided: 
(f)
a decision relating to the levy payable by a particular levy payer: 
(g)
a decision made under the Code about a claimant's complaint. ”
[25]
Finally, “entitlement” is defined at s 6 as meaning “entitlements described or referred to in section 69”. Section 69 reads: 
“(1)
The entitlements provided under this Act are — 
(a)
rehabilitation, comprising treatment, social rehabilitation, and vocational rehabilitation: 
(b)
first week compensation: 
(c)
weekly compensation: 
(d)
lump sum compensation for permanent impairment: 
(e)
funeral grants, survivor's grants, weekly compensation for the spouse, children and other dependants of a deceased claimant, and child care payments. 
(2)
The entitlements provided under this Act also include the entitlements referred to in parts 10 and 11. ”
[26]
The above provisions were considered in the District Court decision of Smith Decision No. 305/2004. The District Court held at pp.5 and 6: 
“[19]
In Hawea v ACC (High Court, Napier, CIV 2003-441-607, 6 July 2004), Gendall J. referred to the definition of “decision” in s6(1) of the 2001 Act, and stated, at paragraphs 17-18: 
‘ … The definition section is not exclusive. 
To make a decision is to make up one's mind, to make a judgment, to come to a conclusion or resolution. Only when a decision has been made can there be a right of review and if no right of review exists then s 133(5) has no application … The substance [of the communication in question] has to be analysed. ’”
[20]
At paragraph 21, Gendall J. stated that whether a certain communication to a claimant could be characterized as a ‘decision’ would depend on the circumstances. 
[21]
In the recent case of Weir v Accident Compensation (High Court, Wellington, CIV-2003-485-1921, 18 August 2004 — Miller J) His Honour said at paragraph [40]: 
‘In answer to Mr Barnett's point that this decision would open up ACC's administration to constant review, several points may be made. The first is that an IRP is not simply an administrative process. The statute prescribes it, and it is of central importance to the statutory goal or rehabilitation. Statutory obligations surround it. Second, it remains the case that only “decisions” as defined in s 6 and clause 9 of schedule 1, are reviewable. Third, it is impossible to overlook the fact that an IRP is expressly defined as a “decision” in clause 9, which does not distinguish between IRP's that provide for or remove entitlements and those that do not. ’”
[22]
In my view this makes it clear that administrative actions are not to be subject to review, but that a completed individual rehabilitation plan is reviewable. ”
The Appellant's Submissions 
[27]
The appellant makes it clear in his submissions that the issue to be determined by the appeal is whether the respondent facilitated the appellant's request for a full neurological assessment of his medical condition, in respect to his accepted claim for personal injury. It should be noted that the issue concerning the advocate is no longer a live issue. 
[28]
The appellant submits the following: 
“3. Background of Substantive Issue 
3.1
On the substantive issue of specialist assessment for Mr Huntley, ACC maintain that a Medical Misadventure claim that was declined in 1966 holds ACC free of any obligation to facilitate further specialist medical assessment of Mr Huntley's ongoing health problems. 
3.2
To avoid belabouring a moot point, Mr Huntley is not seeking specialist assessment on matters dealt with in the 1996 Medical Misadventure claim. 
3.3
Mr Huntley's issue remains that he has valid medical reports that diagnose injuries for which ACC has not provided the correct cover, entitlements or rehabilitation. 
3.4
ACC refers to prior actions and decisions that do not address Mr Huntley's current medical condition, as far as it relates to his covered injuries. This has caused the substantive issue to become obscured and remain unaddressed. 
3.5
Cause of Action Analysis clearly shows the substantive issue throughout is Mr Huntley's need of specialist medical assessment and that subsequent issues have arisen to cloud the issue. 
3.6
Further, in light of Judge Cartwright's 1995 decision, ACC cannot show the transitional provisions from the 1972 and 1982 Accident Compensation Acts to the IPRC Act 2001 that ACC have used as to limit Mr Huntley's choice of assessment type and the choice of the specialist medical assessor to undertake it. 
4. Submission on Substantive Issue 
4.
Thus, as Mr Huntley requires a full neurological assessment, it is respectfully submitted to this court that the substantive issue to be heard is that ACC has failed to facilitate an assessment which they are obligated to do by Acts of Parliament. This is the cause of action that lead to this hearing. ”
Conclusion 
[29]
The appellant contends that he has a right to a neurological assessment to assess his current condition. A medical assessment is not an entitlement under the appropriate legislation. If the appellant wishes to be assessed by a neurologist in respect of injuries sustained from the 1977 accident that is a right that the appellant has, but the appellant cannot force the respondent to arrange and fund that assessment. The funding and further arrangement is at the respondent's discretion. It is clear that the respondent had considered that issue, but declined to arrange a further assessment. This clearly is an administrative decision. 
[30]
For the reasons given the appeal is dismissed. There is no order as to costs. 

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