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Accident Compensation Cases

Cameron v Accident Compensation Corporation (DC, 10/09/07)

Judgment Text

Judge M J Beattie
The issue in this appeal arises from the respondent's decision of 27 May 2003, whereby it declined the appellant's claim for weekly compensation, it contending that the appellant was not an earner immediately before her incapacity. 
The appellant has cover for a sensitive issue claim and as part of an order prohibiting publication of her name or any particulars that may lead to her identification, her name has been changed to that of a made-up name for the purposes of this decision. This practice is in line with the practice sanctioned by the Court of Appeal in its decision White v Northumberland (2006) NZFLR 1105
For all purposes this decision may be cited as Cameron v Accident Compensation Corporation
This appeal does raise an interesting point of law principally involving statutory interpretation. 
Broadly stated the issue is whether a claimant can have an entitlement to weekly compensation when the incapacity for which that weekly compensation is sought pre-dates the date of the personal injury giving rise to the incapacity. Whilst that proposition may appear at first sight to not make sense, it is the reality of a circumstance where the Act provides for a “deemed” date of injury. 
The relevant background facts in this appeal may be stated as follows: 
From 1989 to December 1991 the appellant was employed as the manager of a caravan park. She was married. 
In 1991 she was at the bank doing some banking when an armed bank robbery took place. She was unharmed in this incident but was described as being traumatised by it. 
At or about the same time the appellant's marital relationship began to deteriorate and she began to be the victim of both sexual and emotional abuse by her husband. 
According to the appellant the situation reached the point at Christmas 1991 where she felt she could no longer work because of the marital abuse and she gave up work. 
It seems as though she and her husband remained together for the next six or seven years, although with periods apart, and the abuse may have continued. 
The appellant has had some part-time employment over the years but not consistently. 
In January 2003, the appellant for the first time approached her GP, Dr Chan, who had been her GP since 1995, and sought help for the emotional and mental problems that she had been suffering from for some years. 
As well as setting proper psychiatric treatment in train, Dr Chan lodged a claim for cover on the appellant's behalf for mental injury arising from the sexual abuse she had suffered in the early '90's from her husband. 
The respondent granted cover to the appellant for her mental injury, cover being granted pursuant to Section 21 of the Act, being cover for mental injury caused by a criminal act listed in Schedule 3. 
The appellant was not in employment in January 2003 when she consulted Dr Chan. 
The appellant sought weekly compensation backdated to December 1991 when she ceased working as manager of the caravan park, she contending that she was incapacitated from that time consequent upon the mental consequences of the sexual abuse that she had begun to suffer. 
The respondent sought specialist psychiatric opinion from Dr Jan Reeves, Consultant Psychiatrist, and it also obtained further information from Dr Chan. 
Dr Reeves gave as her concluding opinion as follows: 
“It is my opinion that in 1991 she gave up work because of PTSD symptoms related to the bank robbery and also anxiety triggered by the events occurring in her marriage. ”
The respondent issued its decision of 27 May 2003, now the subject of this appeal, that the appellant was not eligible for weekly compensation as she was not an earner in January 2003 when she lodged her claim. 
The appellant sought a review of that decision and a Review Hearing took place on 22 June 2004 and a second date of hearing on 1 October 2004. The appellant was represented by Counsel at this Review. 
In his decision dated 27 October 2004, the Reviewer rejected the submission made by counsel that the actual commencement date of a mental injury should be the date on which capacity is determined. The Reviewer determined that Section 36 of the 2001 Act prescribes the date of injury as being the date on which treatment was first sought for that injury. That date was January 2003 at which date the appellant was not an earner. He therefore confirmed the respondent's decision to decline weekly compensation. 
Dr Chan had been the appellant's GP since April 1995. He reported that the appellant had only advised him in January 2003 that she had been the victim of sexual abuse. He further stated as follows: 
“When I first saw X in 1995 it was for a panic attack. Up until January 2003 there was no mention of sexual abuse. I advised X that I was not in a position to certify that she was impaired or incapacitated for work since 1991 as I had no evidence of this. Most of her consultations have been for minor complaints X has been reluctant to tell me the exact nature of the sexual abuse and my knowledge of her current condition comes mostly from the correspondence from the counsellor (letter enclosed). ”
For the purposes of the Review Hearing, Counsel for the Appellant had sought the opinion of Dr Gil Newburn, Neuropsychiatrist. Dr Newburn's diagnosis was that the appellant presented with a moderately severe major depressive disorder, a post-traumatic stress disorder, which he put entirely as being consequent upon sexual abuse suffered at the hands of her husband. Dr Newburn's final word was as follows: 
“In addition to findings in my previous report, I note that Mrs C remains unable to engage in her usual vocational activity. This is due to her symptoms of moderately severe major depressive disorder and post traumatic stress disorder. As these symptoms arise from the abuse suffered at the hands of her husband, it follows that her inability to work also is directly a consequence of this abuse. ”
The final item of medical evidence is a report from the Phobic Trust of New Zealand Inc. 1983. The Trust reported to appellant's counsel on the record it had of its dealings with the appellant. That report stated, inter alia, as follows: 
“Ms C was referred to us by her GP locum Dr R Nicholson on the 3rd August 1992 seen by the Phobic Trust on the 10th of August 1992 for an assessment. There are no records to say that she received treatment at that time. In the assessment it was found that she was suffering from panic attacks in open spaces and in crowds, that is a diagnosis of Panic Disorder with Agoraphobia. 
Ms C came gain to the Phobic Trust on the 19th July 1996. She presented with panic disorder with agoraphobia, Obsessive Compulsive Disorder (OCD) and phobia of driving. She was seen by a psychiatrist on the 19th of July 1996 and also started to receive treatment by a therapist from that day. Ms C was seen several times until late August, early September 1996. Her treatment focused on her fear of driving and her low self-esteem. In Ms C's record it is mentioned that she told her therapist that her husband Bruce was mentally abusive to her and she was finding it difficult to deal with. ”
For completeness, it should be noted that there is no evidence of the appellant seeking any medical treatment at or about the time she ceased her employment at the caravan park in December 1991. 
Mr Wakefield submitted that there was evidence from Dr Newburn, Dr Reeves, and the Phobic Trust, which would indicate that the reason the appellant gave up her employment in December 1991 was for the mental injury with which she was subsequently diagnosed in 2003 and for which cover was granted. 
Mr Wakefield further submitted that the “deeming” provision contained in Section 36 of the Act was a date provided for administrative efficiency but ought not to be considered a date which would cause any exclusion to rightful entitlements. Counsel referred to the decision of Bryant v Attorney-General, High Court, Wellington, (CP44/00). 
The plaintiff in that civil proceeding was seeking to maintain an action in tort against the Royal New Zealand Navy for his exposure to asbestos during the time that he was in the Navy between 1969 and 1981. The issue was whether the plaintiff could bring a civil action in such circumstances or whether such a civil action was statute barred under Accident Compensation legislation. The plaintiff had been ordinarily resident in Australia for a number of years and was so resident there when he was diagnosed with asbestosis. The plaintiff sought to use Section 45 of the Accident Insurance Act 1998 in aid to maintain his civil action. Section 45 states that the date on which the insured suffers personal injury caused by work-related gradual process, disease or infection, is the date on which the insured first receives treatment from a registered medical practitioner for that personal injury. 
It was contended for the plaintiff that by virtue of that provision he had suffered his injury in Australia and was thereby outside the ambit of the exclusionary provisions of the Accident Compensation legislation which excluded civil action for personal injury. 
There were other statutory provisions relevant but in relation to the “deemed” date of injury provision, His Honour noted that a purposive construction of the Act insofar as Section 45 is concerned is required. He stated: 
“In my view it fixes the time of personal injury by accident but does not exclude cover in the circumstances of this personal injury by accident which was a result of a process suffered or undertaken in New Zealand. It is appropriate that cover should be available in such cases and not subject to the vagaries of proof of fault or a non existent employer. Cover for mental injury from sexual abuse requires either such abuse in New Zealand or ordinary residence in New Zealand at the time of the abuse. Residence on the deemed date of injury is irrelevant. Medical misadventure overseas requires residence in New Zealand where treatment is given and residence on the deemed date of injury is irrelevant. I think the Crown arguments should prevail and s 45 should be construed on the same basis and that the deemed time the injury occurred does not render the cause of the personal injury as occurring other than in New Zealand. ”
Finally, Mr Wakefield submitted that there were strong grounds to establish that the appellant had severe mental problems from 1992 onwards and that it would be unfair for her to be held to the deemed date of injury. 
Mr Hunt for the Respondent, submitted that the issue in this appeal was governed by Sections 36, 103, and Clause 32 of Schedule 1. He submitted that once cover has been established, Section 103 requires the respondent to determine incapacity of a claimant who was an earner at the time he or she suffered a personal injury. The words of Section 103 make it clear that incapacity and earner status must be determined at the time of personal injury. He submitted that incapacity and earner status cannot be determined before a personal injury has occurred or been suffered. 
Mr Hunt submitted that the decision of His Honour Judge Ongley in BRM (Decision 222/04) is directly on point, as was another decision of this Court, namely Lowe (Decision 204/04). 
Mr Hunt submitted that even if the appellant were to overcome the hurdle of Section 36, nevertheless the evidence of incapacity back in December 1991 is totally insufficient. 
Finally, Mr Hunt submitted that the decision of Bryant was not helpful. The issue in that case was the location of the plaintiff not time and the Court held that the location of the plaintiff must have been within New Zealand and therefore the subject of the Accident Compensation legislation. 
The appellant has cover for mental injury being cover as set out in Section 21 of the Act. The appellant does not have cover for a mental injury suffered in 1991. It is the case that she was only diagnosed with same at the end of 2002 and which was confirmed by Dr Reeves in early 2003. 
Section 36 of the Act states as follows: 
“Date on which person is to be regarded as suffering mental injury 
The date on which a person suffers mental injury in the circumstances described in Section 21 is the date on which the person first receives treatment for that mental injury as that mental injury. ”
The next relevant provision is Section 100(1) which states: 
“100 Entitlement to weekly compensation depends on claimant's incapacity for employment and vocational independence. 
A claimant who has cover and who lodges a claim for weekly compensation — 
is entitled to receive it if the Corporation determines that the claimant is incapacitated within the meaning of Section 103(2) and the claimant is eligible under Clause 32 or Clause 44 of Schedule 1 for weekly compensation. ”
Section 103 states: 
“Corporation to determine incapacity of claimant who, at time of incapacity, was an earner. 
The Corporation must determine under this section the incapacity of — 
a claimant who was an earner at the time he or she suffered the personal injury: 
The question that the Corporation must determine is whether the claimant is unable because of his or her personal injury, to engage in employment in which he or she was employed when he or she suffered the personal injury. ”
Clause 32 of Schedule 1 is the clause applicable which states: 
“Corporation to pay weekly compensation for loss of earnings to claimant who was earner. 
The Corporation is liable to pay weekly compensation for loss of earnings to a claimant who — 
has an incapacity resulting from a personal injury for which he or she has cover and 
was an earner immediately before his or her incapacity commenced. ”
By virtue of those statutory provisions, it is clearly the case that incapacity, being an earner and suffering personal injury are all required to be present if a weekly compensation entitlement is to arise. 
Clause 32 is specific and it can only be the case that incapacity can arise from the personal injury and that incapacity cannot precede the fact or date of the personal injury. 
As was submitted by Mr Hunt, this very situation was presented to His Honour Judge Ongley in the BRM decision (supra), and in his decision His Honour noted the distinction between the date for suffering mental injury where there was no physical injury and that of where there was a mental injury suffered because of a physical injury suffered where the mental injury for the latter is said to have commenced from the date of the suffering of the physical injury. 
Against that background His Honour stated as follows: 
“There is of course a spectre of unfairness where a person who can identify physical injury causing mental injury is placed in a potentially more favourable position than a person who cannot. The different treatment of the two different circumstances contemplated by s 36 is not difficult to understand as reflecting legislative policy. In many instances the time of making a claim determines the commencement of compensation. There is some logic in fixing a date for compensation as the time on which the effect of the mental injury is sufficiently serious or obvious that the person seeks treatment. The problem created by s 36 is that it does not prescribe a date for commencement of compensation, but an assumed or artificial date on which the injury is deemed to have occurred. The same approach is taken in s 37 concerning to work-related gradual process injury and s 38 concerning medical misadventure. 
There are many instances in the compensation statutes of time requirements that must be met before money will be paid. Entitlement for loss of potential earnings depended from the beginning on definitions involving age and other conditions determined by legislative policy. I am unable to find a persuasive reason to adopt the meaning for which Ms Ross contends. I am satisfied that the words of s 36 have a clear meaning and must have been so intended by the legislature. ”
I have considered the Bryant decision and find that it is not helpful to the appellant's cause as in that case His Honour determined that the deeming provision fixed the time of injury only and that residence at the deemed date was irrelevant. If anything, this decision reinforced the view that these provisions, of which there are several in the Act, do provide a time-line of certainty and are not simply for administrative purposes and cannot be construed so when they are inextricably bound up with the entitlement provisions which I have set out above. 
During the course of the hearing it was pointed out to me that the appellant in the BRM decision had been given leave to appeal to the High Court but that the appeal was not proceeded with by virtue of some confidential settlement. Naturally, Counsel for the Appellant asked that I construe that circumstance as evidencing that there was power in his argument. I find that nothing at all can be construed from the fact that the BRM case did not proceed to appeal and in the circumstances I propose to adopt and follow the reasoning of Judge Ongley, it being entirely in accord with my own view of the way that Section 36 must be construed and of the implications which it has on the right to entitlements and where the timing of injury is an essential factor. 
For the foregoing reasons, I find that the respondent was correct to decline the appellant's claim for weekly compensation, she not qualifying for same as she was not an earner immediately before her incapacity in January 2003. This appeal is dismissed. 

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