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Accident Compensation Cases

Jurczak v Accident Compensation Corporation (DC, 04/04/07)

Judgment Text

DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge M J Beattie
[1]
The applicant seeks leave to appeal the decision of His Honour Judge J Cadenhead, delivered on 22 December 2006, under Decision No.323/06, to the High Court. 
[2]
The Court has received submissions from the appellant in support of his application and it has also received submissions from Mr D Tui, Counsel for the Respondent, in opposition thereto. 
[3]
The issue in the appeal determined by His Honour Judge Cadenhead was whether the appellant was entitled to cover for a gradual process injury said to have arisen from keyboard use in his employment as a design/draughter. 
[4]
The primary decision issued by the respondent on 23 December 2005 declined the applicant's claim, the grounds for declinature being that there was no evidence that the applicant had suffered a personal injury within the meaning of the Act. 
[5]
For the purposes of the appeal the Court received reports from a number of medical specialists and in his decision His Honour stated, inter alia - 
“I have read critically the medical evidence of both sides of the issue and in my view, with the exception of the physiotherapist, the medical evidence does not favour a finding of a discrete physical injury. ”
His Honour then went on to comment on that evidence in greater detail. 
[6]
The grounds for leave as submitted by the applicant contend that the Court failed to take proper account of certain evidence and had placed too much weight on other medical opinion. In short, the applicant takes issue with the findings of fact and the analysis of medical evidence as given by the Learned Judge in his decision. 
[7]
For leave to appeal to the High Court to be granted under Section 162 of the Act, an applicant must identify that a question of law is involved in the decision sought to be appealed, and that question of law is both serious and capable of bona fide argument. 
[8]
Mr Tui, I find, quite correctly submits that the applicant has not identified any question of law and is simply taking issue with the findings of fact made by His Honour on the evidence that was presented. 
[9]
I agree with that submission and find that the decision made by His Honour was entirely one made on the medical evidence as to whether the applicant could or could not establish that he had suffered a discrete physical injury. His finding was that the symptoms the applicant displayed were those of a primary central pain syndrome, as had been identified by one of the specialists, Dr Thompson. 
[10]
Finding as I do that no question of law arises from the decision of His Honour, it is the case that leave to appeal cannot be granted. Issues of fact are not the subject of a right of appeal. Accordingly, leave to appeal to the High Court is refused. 

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