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Accident Compensation Cases

Prasad v Accident Compensation Corporation (DC, 01/02/08)

Judgment Text

Judge M J Beattie
The applicant has made application for leave to appeal to the High Court from the decision of His Honour Judge Cadenhead, delivered on 25 February 2005 under Decision No.53/05. 
In furtherance of that application the Court has received submissions from Mr M Darke, Advocate for the Appellant, in support, and from Mr D Tui of Counsel for the Respondent, in opposition. 
At issue in the appeal was the correctness of the respondent's decision of 30 June 2003, whereby it revoked cover previously granted to the appellant for a gradual process injury said to have arisen from her employment as a bank officer. 
It is the case that the respondent had granted cover to the appellant for an injury described as de Quervain's tenosynovitis on 22 July 1998. 
The authority under which the respondent made its decision which became the subject of the appeal is Section 390 of the 2001 Act, which section gives the Corporation power to revise any decision made before the commencement of this Act if it appears to the Corporation that the decision was made in error, whatever the reason for the error. The provision goes on to note that in revising the decision the Corporation must apply the Act that applied at the time when the decision being revised was made. 
The respondent's primary decision which gave rise to the appeal stated that cover was being revoked because — 
“There is insufficient medical evidence to link your occupation as a bank teller, and the duties required, with your current condition of regional pain syndrome. ”
In the review decision from which this appeal arose, the Reviewer had determined that there was no medical evidence of a physical injury having been caused by a work process, and the specialist medical evidence was against such a finding, and he therefore found that the respondent had been correct to revoke cover. 
In submissions made to His Honour Judge Cadenhead, Mr Darke contended that the respondent's primary decision as stated made no mention of the fact of there not being a discrete injury, and that its decision was solely on the basis of the absence of a causal link between her duties as a bank teller and her condition of regional pain syndrome. 
In the course of his Judgment His Honour dealt with that issue, which he described as the Jurisdictional Issue, as follows: 
“The submission is that there was no mention of any decision that there was no discrete injury. The decision under review was purely whether or not there was a causal link between her work and her current condition. As the respondent had not made a decision in relation to whether there was a personal injury, the reviewer had no jurisdiction to determine the matter. 
I find that the respondent's letter of 30 June 2003 in its primary aspect, revoked the appellant's claim for cover for a gradual process injury, therefore any aspect that goes to prove that the appellant is not eligible for cover under the 1992 Act can be relied on by the respondent. The issue was whether or not there was sufficient medical evidence to establish a causal link between the appellant's work and her current condition. The gist of this decision centres first on the issue of whether there was a personal injury in terms of the legislation. In my view the primary decision poses this question, which must be answered in the affirmative, before any of the other steps in the legislation have to be answered. 
In this case, the respondent alleges there is insufficient evidence to establish that the appellant suffered from a physical injury under the Act, and there is also insufficient evidence to indicate that the appellant's symptoms are causally related to her work as a bank teller. ”
His Honour then went on to consider the medical evidence to determine whether there was or was not evidence of a physical injury having been suffered by the appellant arising from her employment. 
After a consideration of the medical evidence, His Honour determined that the majority of the medical evidence established only that the appellant was suffering from a regional pain syndrome, and that the greater body of medical opinion was that this syndrome was unrelated to any discrete injury connected to her occupation. His Honour gave reasons why he considered the evidence of two health professionals to the contrary could not affect that finding. 
His Honour therefore concluded that on the balance of probabilities the respondent had shown that the initial cover granted to the appellant was granted in error, and that it had established that the appellant could not show a discrete personal injury caused by her employment. 
In his application for leave, Mr Darke submitted that the decision was in error in respect of the following issues of law. 
The Court erred by holding that the Reviewer (and subsequently the Court) had jurisdiction to consider any other aspect than whether the condition Mrs Prasad suffered from was work-related. 
The Court erred in law by finding that an appeal by way of re-hearing cured any earlier breaches of the requirement to hold a fair hearing during the review process. 
The Court erred in law by failing to take account of the only specialist report which offered an opinion on the personal injury that caused the regional pain syndrome. 
The Court erred in law by relying on medical reports that did not specifically address the three-limb test in Section 7 of the Act, but rejected the medical report of Dr Dryson that did. 
The Court erred by misapplying the onus of proof. 
The Court erred in law in concluding that Section 390 of the Act was available to the respondent in this case. 
As to the first two questions, Mr Tui for the Respondent submitted that there was no merit in either of those grounds. He submitted that the Court had correctly held that the entire primary decision is before the Reviewer and the Court for consideration, not merely the basis upon which the decision was made. He further submitted that any perceived unfairness at the way the review hearing may have been conducted was cured by the fact that the hearing before the District Court on appeal was by way of re-hearing at which it was open to an appellant to obtain leave to introduce further evidence. 
The questions raised by the applicant, I find, are not questions pertaining to errors of law. His Honour correctly identified what the issue under appeal was and proceeded to correctly consider the evidence pertaining to that issue. He correctly identified that the issue was the decision to revoke cover rather than it being confined to a consideration of the reason given. 
As to questions Nos. 3 and 4, the Learned Judge's decision makes it quite clear that he considered all the medical evidence, including that of Dr Dryson and Mr Hooker, whose reports were relied on by the appellant, and in his decision he has given reasons why he preferred the majority medical evidence which supported the respondent's position rather than those which tended to support the appellant. In so doing, the Judge was simply making findings of fact on the evidence and no questions of law are in issue in relation to his assessment of the evidence. 
As to question 5, it was Mr Darke's contention that the Learned Judge approached the matter from the point of view that it was for the appellant to prove that she had sustained a discrete injury, that is, that she had established the necessary criteria for cover. Mr Darke submitted that the onus was on the respondent to establish that its decision on cover was made in error. 
It must be accepted that if a decision is made in circumstances where the onus of proof is stated as being on the incorrect party and the reason for the decision being adverse to a party is that he/she has not discharged that onus of proof, then such a decision would be a decision made under an error of law. 
In his decision the Learned Judge identified that the appellant needed to establish the fact of a discrete injury in order to have cover but at the end of his decision, at para [70], I find the Judge has correctly identified upon whom the evidential onus lay where the issue is the correctness or otherwise of a decision to revoke an earlier decision. The Learned Judge stated as follows: 
“I find on the balance of probabilities that the respondent has shown that the initial cover granted was in error and that the respondent has proved that the appellant cannot show a discrete personal injury caused by her employment. ”
That paragraph clearly identifies that the Judge accepted that it was for the respondent to prove that its earlier decision was one made in error. In those circumstances I find that the claimed error has not in fact been committed and no question as to a claimed error of law on the onus of proof arises. 
The final ground asserted is that Section 390 was not available to the respondent as the basis for its decision, Mr Darke contending that the matter was simply a difference of opinion between specialists rather than evidencing a decision made in error. Mr Darke then submitted that it was not open for the Court to find that there was an error within the meaning of Section 390 merely because new medical evidence stated matters to have been different from that which have been asserted at the time of the earlier decision. 
In support of this submission Mr Darke referred to the High Court decision of ACC v Bartels (High Court Wellington, CIV 22005-4-86-2072). The particular passage relied on in that decision states: 
“A decision will not be made in error if there are credible differences of opinion between experts. Error requires the identification of factual material significant to the original decision which has now been exposed to be clearly wrong. ”
That passage from Bartels needs to be put in context of the complete paragraph in which it is contained. At para 34 of its decision the Court stated as follows: 
“We wish to stress, however, that the pivotal issue in many cases unders 390 will be whether an error has been established. As we will illustrate when we consider the facts of this particular case, a decision will not be made in error if there are credible differences of opinion between experts. ’Error requires the identification of factual material significant to the original decision which has now been exposed to be clearly wrong. It will not be sufficient to establish error for others to have a different opinion unless the new opinions are based on fresh or new evidence which was not in the possession of the original decision-makers and which undermines their decision to a degree from which one can conclude, with that information, that there decision was clearly wrong. ”
It is clear from the above passage that the Court considered that for the respondent to establish that its earlier decision had been made in error, it requires evidence to a degree from which it can be established that the earlier decision was clearly wrong. 
In the course of his decision the Learned Judge considered whether the respondent's earlier decision had been made in error, in the light of subsequent medical evidence, and concluded that it had in that it had been made without any evidence having been presented to it that the appellant had suffered a physical injury. 
This finding by the Learned Judge is a finding of fact and I find that it is a finding that he made consequent upon him correctly identifying what was required to be established for it to be found that the earlier decision had been made in error. 
The issue raised by Mr Darke on this point involves questions of fact, not of law. The only matter of law is well settled and does not require any clarification. 
For the foregoing reasons, I find that no credible or bona fide question of law arises from the Learned Judge's decision, that decision being made upon the medical evidence that was presented to him and from which he correctly applied the applicable legal principles. Leave to appeal is accordingly refused. 

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