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Accident Compensation Cases

MacPherson v Accident Compensation Corporation (DC, 28/11/08)

Judgment Text

DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge P F Barber
The Application 
[1]
The appellant's application for leave to appeal was filed on 6 December 2006 but details of his grounds came to hand on 13 March 2008 in a letter from Mr Miller (as Counsel for the appellant) to Mr Barnett (as Counsel for ACC) stating: 
“The points of law are those set out in the High Court decision from paragraphs 39 to 48. They are that the District Court did not apply the correct legal tests for incapacity pursuant to section 37A as its finding that Mr MacPherson was fit to return to normal duties was inconsistent with the facts. Therefore there is that question of law. There is also the question of law that the Judge made a finding of fact which was not based on the evidence before him. There is another question of law in that the Judge misinterpreted the specialist's opinion that the ACC purported to rely on. Another question of law in that the Judge misinterpreted the meaning of ‘accident’ and failed to consider the question of a series of events to cover the previous six back injuries. Again, there were findings that were not based on the facts and we are finding that they did not consider the six previous back injuries. So in essence a misinterpretation of the facts, drawing conclusions from the facts which were not available from the facts, failing to consider the proper meaning of incapacity, and failing to consider the application of section 37A and failing to consider the definition of “accident”. ”
Background 
[2]
In a decision of 9 May 2002, Judge Beattie dealt with the correctness of ACC's 12 June 1997 decision to cease entitlements to the appellant, in particular weekly compensation, on the basis that the appellant was no longer incapacitated. Judge Beattie found that the evidence upon which ACC acted was sufficient and appropriate and that its said decision was correct; so that he dismissed the appeal. 
[3]
The appellant wished to appeal against that decision which, in terms of s 97 of the Accident, Rehabilitation and Compensation Insurance Act 1992, required leave from this Court and, in terms of rule 703 of the High Court rules, an application for leave to be filed within 20 working days of the decision, with provision for a would-be appellant to apply for an extension of that time limit. The appellant did not seek leave within the prescribed time but, by a judgment of 23 November 2006, Courtney J granted an extension of time to the appellant to apply to this Court for leave to appeal to the High Court. Courtney J, helpfully, set out the factual background to this matter as follows: 
“[22]
Mr MacPherson is a former self-employed automotive air-conditioning technician. Over the years 1990 — 1995 he suffered six separate back injuries during the course of his work. The ACC accepted all of these injuries as falling within the relevant legislation. On each occasion he was granted earnings-related compensation and subsequently returned to his work. 
[23]
In January 1997 he suffered his seventh accident-related back injury. This occurred during the course of his work whilst bending and lifting and ACC granted cover, providing earnings-related compensation from March 1997 until June 1997. During this period Mr MacPherson decided he could not continue in his current occupation given the apparent inevitability of injury during bending and lifting which was an unavoidable part of his work. He ceased his business and moved to Christchurch with his wife, who was then expecting their second child. 
[24]
In May 1997 ACC arranged for Mr MacPherson to see an orthopaedic surgeon, Mr Jones. The ACC's letter of instruction to Mr Jones asked for a report on the following issues: 
Diagnosis; 
Prognosis; 
Whether Mr MacPherson was able to return to his pre-accident employment as a car air-conditioner in the near future; 
Any other factors Mr Jones considered were important to the management of the claim; and 
Whether Mr MacPherson's back problems were directly related to his injury on 30 January 1997 or to other pre-existing conditions. 
[25]
Mr Jones examined Mr MacPherson and supplied a report to ACC. The report referred to Mr MacPherson's history as it had been described by Mr MacPherson, noted the apparently unremarkable physical examination of Mr MacPherson and of x-rays of his back. It gave a diagnosis of mechanical lumbar back pain (resolving) and minor lumbar scoliosis. Mr Jones concluded: 
‘In my opinion Mr MacPherson would have sustained a relatively minor injury to his lower back. His impairment was probably compounded by a pre-existing minor lumbar scoliosis. Mr MacPherson is not showing any evidence of a chronic pain syndrome. His injuries are stable, there is no further specific treatment required. The long-term prognosis here is for normal function, although he may experience episodes of lower back pain in the future. 
Mr MacPherson is fit for normal work duties at this point. ’”
[26]
On the basis of that report the ACC wrote to Mr MacPherson advising: 
‘Based on the clinical/radiological investigations and Specialist information received it is the opinion of the Corporation your current incapacity is no longer related to your original accident and I regret to inform you that you no longer have eligibility to rehabilitation, compensation, grants or allowances for this claim. ’
The ACC's decision was upheld on review in May 2001 and confirmed by Beattie DCJ in May 2002. ”
[4]
It is also helpful to set out the said paragraphs in Courtney J's decision upon which the appellant now relies, namely: 
“[39]
Ms McLaren advanced two general grounds on which the appeal would be based. The first focussed on the Judge's finding that Mr MacPherson was not incapacitated. Ms McLaren submitted that the Judge erred by finding (impliedly) that, for the purposes of determining whether Mr MacPherson had suffered an incapacity by reason of a personal injury, he was confined to considering the personal injury that had occurred on 30 January 1997. Instead, Ms McLaren said that the Court could and should have considered the cumulative effects of the previous covered claims. Its failure to do so meant that it failed to apply the correct legal test for ‘personal injury by accident’
[40]
Ms McLaren submitted that the correct approach was that:- 
a)
Mr MacPherson had suffered several physical injuries within the meaning of ‘personal injury’ in s 4 ARCI Act as a result of the incidents up to and including the incident on 30 January 1997. All of these injuries were covered; 
b)
Under s 8(2) ARCI Act cover for personal injury was extended to personal injury caused by ‘accident’ and Mr MacPherson's personal injuries were all caused by ‘accident’ as defined in s 3 ARCI Act in that they were a ‘series of specific events’ resulting in personal injury. 
[41]
Ms McLaren also submitted that the Judge failed to consider whether Mr MacPherson suffered from an incapacity under s 37A which provided that: 
‘(1)
For the purposes of this Part of this Act, the Corporation shall determine the incapacity of any person … in accordance with this section. 
(2)
The object of a determination of incapacity under this section is to determine whether or not the person is, by reason of his or her personal injury, for the time being unable to engage in employment in which the person was engaged when the personal injury occurred …  ’”
[42]
It seems to me that the point that Ms McLaren seeks to make is that the Judge accepted Mr Jones' opinion uncritically and was wrong to do so. Had he viewed the opinion against the meaning of ‘accident’ in s 3 and in light of the numerous previous back injuries the question would have arisen as to whether the cumulative effect of the previous injuries had been taken into account by Mr Jones. But it is clear that the Judge did not consider these issues: 
‘[8]
The medical evidence which existed at the time the respondent made its decision was only that of Mr Jones. He is a specialist and was charged with the particular purpose of assessing the appellant's then physical condition as it related to the covered injury. Mr Jones is quite clear in his evidence that the medical examination that he conducted, together with the x-rays that he commissioned, disclosed no continuing injury and that whilst he acknowledged that the appellant may continue to experience episodes of lower back pain, as had been the history prior to that particular injury with which Mr Jones was concerned, he was to all intents and purposes fit for his normal work duties. ’”
[43]
Not only did the Judge not consider the significance of the previous injuries and the possible application of s 8, it is clearly arguable that he drew conclusions from the report that were not available from it. Although Mr Jones did say that Mr MacPherson was fit for normal work duties, he did not say (as the Judge asserted), that the medical examination and x-rays disclosed ‘no continuing injury’. The extract from Mr Jones' report which is reproduced at [4] of the decision says: 
‘His injuries are stable, there is no further specific treatment required. The long-term prognosis here is for normal function …  ’”
[44]
These statements plainly suggest a recognition by Mr Jones that Mr MacPherson was still suffering from injuries. The tenor of Mr Jones' opinion was simply that the injuries were, in his view, sufficiently minor as to make Mr MacPherson fit for normal work duties. 
[45]
It is also of some concern that although the issue was apparently raised at the District Court hearing, Mr Jones' opinion makes no mention of the six previous back injuries over a five year period, all of which had been covered by ACC. Mr Jones' only reference to Mr MacPherson's history was: 
‘In the past Mr MacPherson has experience lower back pain which had required physiotherapy. He was from recollection some years ago off work for two to three weeks. He had had a previous x-ray of his back some years ago …  
At some subsequent date, non-specified, he was bending over an engine in a car while lying in a passenger foot compartment when he developed a recurrence of acute pain in his back …  ’”
[46]
Had the District Court Judge been alert to the definition of “accident” in s.3 and the issue of incapacity in the sense provided in s 37A, then he would, inevitably, have questioned the ACC's reliance on Mr Jones' opinion. 
[47]
I do not think that the issue is as simple as suggested by Mr Barnett that, because the Court found that there was no continuing incapacity due to the covered injury in January 1997, it did not need to go further and consider whether there was an incapacity in the sense defined by s 37A. 
[48]
Ms McLaren also submitted, and I accept, that it is arguable that if the Court did apply the correct legal test for incapacity pursuant to s 37A then its finding that Mr MacPherson was fit to return to normal duties was inconsistent with the facts. Had the Court independently considered the factual position, which was inadequately described in Mr Jones' report, then a question must have arisen for it as to whether in fact Mr MacPherson was fit for normal duties. 
[49]
Of course, in determining the present application I am not determining the issues that Mr MacPherson wishes to raise on his appeal. But there is sufficient merit in these points to be satisfied that Mr MacPherson's questions of law are capable of bona fide and serious argument. ”
Reasons for ruling 
[5]
Pursuant to s 162(1) of the Injury, Prevention, Rehabilitation, and Compensation Act 2001, the appellant is only entitled to leave to appeal to the High Court on questions of law. 
[6]
It is settled law that the contended point of law must be capable of bona fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues or fact to be dressed up as questions of law as appeals on the former are proscribed. However, a mixed question of law and fact is a matter of law, and a Judge's treatment of facts can amount to an error of law. 
[7]
Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course. 
[8]
In this particular case, Mr Barnett (as Counsel for ACC) neither consents nor opposes the application to this Court for leave in terms of Courtney J's decision extending time for such an application to be made. Her reasoning is clear and comprehensive. The issues to be taken into account by me, when dealing with the application for leave to appeal to the High Court, have been clearly dealt with by Courtney J who held that there is a serious and arguable question of law at stake. Essentially, she was referring to the issue whether, at material times, the appellant was incapacitated by accident and whether this Court had applied the correct legal test for incapacity pursuant to s 37A of the 1992 Act. Indeed, her final paragraph reads: 
“[53]
In this case I am satisfied that there are serious questions of law that are capable of bona fide argument and outweigh any prejudice to the ACC as a result of the delay in advancing the application for leave. I grant the application for an extension of time to apply for leave to appeal and direct that any such application be filed within 14 days of the date of this decision. ”
[9]
I respectfully agree with Courtney J that there are issues of law capable of serious and bona fide argument so that I grant the application for leave to appeal to the High Court. Costs are reserved. 

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