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Accident Compensation Cases

Lay v Accident Compensation Corporation (DC, 18/11/09)

Judgment Text

RULING OF JUDGE P F BARBER 
Judge P F Barber
The Issue 
[1]
On 10 June 2009 Judge M J Beattie dismissed an appeal from a 22 April 2005 review decision (of Reviewer Ms S Welsh) which, in turn, had confirmed a 5 November 2004 decision of the respondent that the appellant was not entitled to be paid the sum of weekly compensation which had accrued in the period from 29 August 2003 to 4 October 2004. That was the period over which the appellant's weekly compensation had been suspended due to the appellant's non-compliance with ACC's requirement that he provide a signed consent form for the release of information required to progress his vocational rehabilitation. 
Background 
[2]
The facts are extensively reviewed and summarised in paragraph [6] of Judge Beattie's decision, which contains a chronology of events after April 2003. Then, ACC had requested the appellant to complete a consent form to enable ACC release information about the appellant to specialists from whom ACC intended to seek recommendations and reports. 
[3]
For present purposes, I note that the injury in question is a work-related back injury suffered by the appellant in 1983 when he was granted cover under the 1982 Act. From 11 June 1986 he received permanent weekly compensation based on 68 percent permanent total loss of his capacity to earn. He seemed to work in various employments but suffered an aggravation to his back injury on 11 July 2000 and from then he obtained weekly compensation under the 1998 Act. 
[4]
Accordingly, the appellant was continuing to receive his entitlement under s 60 of the 1982 Act, based on permanent incapacity, but together with additional compensation due to the additional income he had been earning at the time of his accident in 2000. 
[5]
By 13 November 2002 the appellant still refused to sign an individual rehabilitation plan (he was first so asked in January 2002) although he did undergo initial occupational and medical assessments. The latter was carried out on 12 March 2003 by Dr Strack who recommended that the appellant undertake a multi-disciplinary pain management course. In April 2003 ACC sought to act upon that recommendation and refer the appellant to a clinical psychologist, but the appellant would not sign the necessary consent form which ACC needed to allow it release information about the appellant to intending medical specialists. 
[6]
Accordingly, by a decision of 20 August 2003 ACC suspended the appellant's weekly compensation until the form was signed. 
[7]
As Judge Beattie stressed, it is important to note that the weekly compensation so suspended was the additional compensation paid to the appellant since July 2000 and not the sum payable under s 60 of the 1982 Act. That was always continuously paid as due. 
[8]
The appellant sought a review of ACC's 20 August 2003 decision. At the review hearing before Mr J T Greene, Reviewer, the appellant's then counsel submitted that there was no lawful requirement for the appellant to undergo rehabilitation, nor to sign an IRP because of his status as a s 60 recipient; and that ACC's decision was an unreasonable exercise of its discretion. In his decision of 30 March 2004 Mr Greene stated, inter alia, as follows: 
“A reviewer's jurisdiction is confined solely to the issue which is the subject of ACC's primary decision. In this case, the only issue in respect of which I have jurisdiction is whether Mr Lay unreasonably refused or unreasonably failed to comply with any requirement of the Act relating to his claim, and in particular, whether he unreasonably refused or failed to sign and return the consent form to ACC. 
Both Mr Bradshaw and Mr Lay have attempted to broaden the issue to include such issues as the status of Mr Lay's entitlement to weekly compensation and whether or not he is required to participate in rehabilitation. Mr Lay was quite direct on this point. He said he believed if he signed the consent form it would ‘put him under the new ACC Act’ and would enable ACC to disentitle him completely. 
I am not sure whether Mr Lay was advised not to sign the consent form by Mr Bradshaw, or whether after taking advice, he decided himself not to sign the consent form. However, I have no hesitation in concluding that his failure or refusal to sign and return the consent form to ACC was unreasonable. Mr Lay had previously signed consent forms. The form which ACC sent to him most recently was the same form as he had signed in January 2002. 
Without a signed current consent form, ACC is prevented from administering a claimant's entitlements as it has no lawful authority to obtain information which it may require from time to time, or to release information, to enable it to assess and calculate entitlements. 
By refusing or failing to sign the consent form, and having been warned on more than one occasion of the consequences of such a refusal or failure, Mr Lay effectively prevented ACC from managing his claim. 
Pursuant to s 117(3)(a) of the Act, I consider that ACC correctly declined to provide ongoing weekly compensation to Mr Lay from 28 August 2003 as he unreasonably refused or failed to comply with a requirement of the Act relating to his claim. He unreasonably refused or failed to sign and return the consent form which ACC required. ”
[9]
Although an appeal was lodged by the appellant against that decision, it was subsequently struck out for want of prosecution. 
[10]
On 30 September 2004, the appellant signed and returned the consent form which he had been originally asked to sign back in April 2003 The signed consent form was returned under cover of a letter from Mr Bradshaw requesting, inter alia, that the appellant's weekly compensation be immediately reinstated and that he be refunded the suspended entitlements from 28 August 2003 to October 2004. 
[11]
It was ACC's response to that request which led to Judge Beattie's decision. That decision letter advised that weekly compensation would be reinstated as from 5 October 2004, but that there would be no payment of weekly compensation for the period 29 August 2003 through to 4 October 2004. 
[12]
The appellant sought a review of that decision and a review hearing took place on 22 March 2005 with the appellant again represented by Mr Bradshaw. The major submission made by Mr Bradshaw was that the appellant had refused to sign the consent form acting on his advice, but that his advice was incorrect as he believed that the appellant had been requested to sign an IRP rather than a consent form. 
[13]
By way of further background it is interesting to note paragraph [7] of Judge Beattie's said decision which reads: 
“[7]
In his submissions at the hearing, and subsequently in his memorandum in reply to that of counsel for the respondent, the appellant contended that he was merely acting on the advice of his solicitor, Mr Bradshaw, and of the fact that at the time that Mr Bradshaw gave him the advice not to sign, Mr Bradshaw thought he was advising the appellant about the rehabilitation plan rather than a consent form. The appellant refers to a letter from Mr Bradshaw in which he, Mr Bradshaw, acknowledged the advice as being his error. The appellant then submitted that suspension can only be had if he had acted unreasonably and he posed the question as to how could he be considered as acting unreasonably if he was merely following the advice of his solicitor, mistaken advice though it may have been. ”
[14]
At the end of his para [6], Judge Beattie recorded the conclusions reached by the Reviewer, Ms S Welsh, as follows: 
“In her decision dated 22 April 2005, the Reviewer, Ms S Welsh, considered the evidence and found that the appellant's refusal to sign the consent form was unreasonable and that the respondent was entitled to suspend his weekly compensation, and she did not accept that either the appellant or Mr Bradshaw were under the mistaken belief that the document being sought to be signed was the IRP rather than the consent and that, on the basis of the Court of Appeal decision in Peck there was no entitlement for backdated weekly compensation during the period of the appellant's non compliance. ”
[15]
At paragraphs [7] (set out above) and [8] of his decision, Judge Beattie outlined the respective submissions of the parties on appeal. He then noted that the date of the ACC decision in issue, 5 November 2004, was significant for two reasons. The first was the decision of ACC v Peck (CA 10/04 issued 17 December 2004). The second was that amendments were made to s 117 from 1 July 2005 which added further provisions under subs (3)B. These enabled ACC to pay entitlements for any period during which it had declined to do so, even where resumption of payment of entitlements had occurred, where it believed exceptional circumstances existed and it would be inequitable to refuse to do so. 
[16]
Judge Beattie noted that the effect of Peck had been its confirmation that there was no right on the part of a non-compliant claimant to receive payment of weekly compensation entitlements which may have accrued during a period of non-compliance. Further, even if the Court were to have considered the provisions of s 117(3)B as being “foreshadowed by the situation that could be said to pertain in situations where payment for a non-complying period is sought”, in the circumstances of this case Judge Beattie found there were no exceptional circumstances that would have made it inequitable not to allow such a payment. 
[17]
Judge Beattie recorded the parties were bound by the related 30 March 2004 review decision of Mr J G Greene who had concluded that the refusal of the appellant, or failure, to sign and return the consent form was unreasonable. Judge Beattie then said: 
“[15]
By virtue of Section 147 of the Act, the appellant is bound by that review decision and therefore the question of reasonableness or otherwise cannot again be considered and is, as a matter of law, issue estoppel. ”
[18]
Judge Beattie then concluded that with the fact of issue estoppel, and the decision of Peck, there was no basis to reopen consideration of wider matters pertaining to the appellant such as his asserted reliance on the advice of his solicitor, and that: “whatever the true case may be this appellant is bound by the decision that the respondent was justified in suspending entitlements, and as such, by virtue of the Court of Appeal decision in Peck he does not have an entitlement to the weekly compensation which accrued during the period of non compliance.” 
[19]
It seems very relevant to me that Judge Beattie had also found at his para [13] “that in the circumstances of this case there are no exceptional circumstances which would make it inequitable not to allow for the payment”
[20]
Judge Beattie concluded by noting that the appellant's s 60 entitlement entrenched the amount of weekly compensation payable to him, but it did not include additional weekly compensation paid pursuant to the 1998 Act following incapacity he suffered in 2000. The only suspended entitlement was the additional amount payable since July 2000 in respect of the post 2000/1998 Act incapacity and, on that basis, the provisions of s 60 of the 1982 Act were irrelevant. 
Appellant's Submissions 
[21]
By 30 June 2009 letter, the appellant (through counsel) sought leave to appeal to the High Court. The letter stated, inter alia: 
“The basis for our client's application generally is that the District Court did not follow the correct approach in determining an appeal under section 149 of the Act, set down by the Court of Appeal in Wildbore v ACC 19 PRNZ 239. The District Court is required to come to its own conclusion on its assessment and evaluation of the evidence, and the merits generally, and Mr Lay says that in Decision 103/2009, the District Court did not undertake this task. 
This and any other grounds will be expanded upon in Mr Lay's submissions. ”
[22]
It is submitted for the appellant that it is apparent from the decision of Reviewer Welsh that any issue of her being bound by the earlier decision of Mr Greene was not placed before her in argument by counsel for the respondent at that hearing, and that she had not considered herself bound by Mr Greene's earlier decision as to the reasonableness of the appellant's actions in not signing the consent form. 
[23]
Counsel for the appellant also contends that ACC was not entitled to introduce “what was effectively a new defence of issue estoppel, at an appellate hearing” on the basis that: “The writer's own experience before the Court of Appeal indicates that Court is unwilling to entertain submissions on matters that have not been placed in issue, in first instance pleadings.” 
[24]
Mr Anderson further submits that: 
“Issue estoppel is a defence to be pleaded and responded to in the same way as any other. It did not form any part of Ms Welsh's decision at first instance and ought not to have been part of the reckoning before the District Court. ”
[25]
The appellant submits that the District Court exercised its appellate jurisdiction incorrectly, and ought not to have entertained the “new defence of issue estoppel and ought to have proceeded to consider the applicant's case, on the same basis as the Reviewer Ms Welsh”. This is said to be all the more the case given the reviewer's conclusion in paragraph 22 above [where she said ‘I do not accept that a client acting on the incorrect advice of his solicitor is acting reasonably’] is arguably wrong
[26]
Mr Anderson seemed to be submitting that it is possible to take the view that the appellant (the present applicant) did not sign the consent form requested by ACC because his then solicitor incorrectly advised him not to. Mr Anderson then put it that, on such a view, I could conclude that the appellant did not act unreasonably so that the Reviewer's conclusion is wrong and could lead to an injustice if a general appeal as to the merits cannot proceed. 
[27]
Mr Anderson then put it that because this Court exercises an appellate jurisdiction under s 149 of the Act (as exercised by Judge Beattie), ACC could not then introduce what (Mr Anderson put it) was effectively a new defence of issue estoppel at that appellate hearing. He submitted that issue estoppel did not form any part of Reviewer Welsh's decision and ought not to have been part of the reckoning before Judge Beattie. 
[28]
Mr Anderson then submitted that as the case before Reviewer Ms Welsh proceeded “de novo”, she was to decide the facts and assess the reasonableness of the appellant's actions in not signing the consent form due to incorrect advice from his solicitor. Mr Anderson submits that the District Court ought to have followed the correct approach in determining s 149 appeals as set out by the Court of Appeal in Wildbore v ACC 19 PRNZ 239 where, in particular, the Court stated: 
“[29]
The correct approach to s. 149 appeals is as follows. First, the District Court is required to come to its own conclusion on its assessment and evaluation of the evidence, and the merits generally. Where the District Court has a different opinion from that of the reviewer, it would be an error of law for it to defer to the reviewer's assessment of the acceptability of, and weight to be accorded to, the evidence rather than forming its own opinion, although the District Court is entitled to have regard to what the reviewer said and give it such weight as he or she thinks appropriate. This conforms with the approach to general appeals enunciated by Elias CJ, for the Court, in Stichting Lodestar: 
… Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate Court's opinion is different from the conclusion of the Tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment, of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion. ”
[Para 16].
[29]
Essentially, Mr Anderson submits that because Judge Beattie was exercising an appellate jurisdiction, he ought not to have entertained “the new defence” of issue estoppel and ought to have proceeded to consider the applicant's case on the same basis as did Reviewer Ms Welsh; and to have done so would have been consistent with the approach required for s 149 appeals as set out in Wildbore v ACC
[30]
In final submissions, Mr Anderson referred to the following extract of Cooper J's decision in Khan v ACC (8C, AK SIV 2007 485-1632, 14 August 2008)
“ … in deciding whether or not to grant leave the Court must consider whether the appeal raises some question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal: Snee v Snee (1993) 3 PRNZ 601 (CA) at pp 612-613; Waller v Hider [1998] 1 NZLR 412 (CA)Has Litigation History which is not known to be negative[Blue]  at p 413. To those well known authorities, the most recent decision of the Court of Appeal in Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd (CA 65/06, 7 February 2007) may be added. In that case the Court emphasised, at [33], that the primary focus should be on whether the question of law is worthy of consideration. ”
[31]
Accordingly, Mr Anderson submits that where this Court has not followed the correct approach to s 149 appeals, a question of law capable of bona fide and serious argument is raised. He submits that there is a question of some interest, public or private, of sufficient importance to justify an appeal in this case because there are the issues of whether the appellant did not sign the consent form because his solicitor incorrectly advised him not to; and whether it was unreasonable for the appellant not to sign the consent form on his solicitor's incorrect advice. 
Submissions for ACC 
[32]
Mr Hunt submits that the matters raised by the appellant in support of the application for leave to appeal do not disclose any arguable error of law in the District Court's decision. 
[33]
He referred to Judge Beattie having noted, at [14] and [15] of his decision, that Reviewer Greene in his 30 March 2004 decision had found there was no basis for the appellant's refusal to sign and return a consent form, and that his failure or refusal to do so was unreasonable. Judge Beattie also noted that, by virtue of s 147 of the Act, the appellant was bound by the review decision: “and therefore the question of reasonableness or otherwise cannot again be considered and is, as a matter of law, issue estoppel”. That observation was made in the context of there having been an appeal lodged against the decision of Mr Greene, which was later struck out for want of prosecution. 
[34]
Judge Beattie had issued a minute on 21 November 2005 regarding the fact that the then counsel for the appellant was seeking to introduce evidence of what he had advised the appellant in relation to requests being made by the respondent for the appellant to sign a medical consent form. That minute noted that: “There is already a binding review decision that Mr Lay acted unreasonably in not signing. Issue estoppel is the respondent's submission.” 
[35]
There was a reference to the 30 March 2004 decision of Reviewer Greene, the subject of an appeal in Al 216/04 which had been struck out for want of prosecution. Mr Hunt submits that, accordingly, the appellant is wrong to suggest that the question of issue estoppel was introduced for the first time at the appeal hearing. I agree. 
[36]
Mr Hunt puts it that, as Judge Beattie clearly identified, the fact that a decision has been made and there has been no challenge to it means that its outcome is binding on the appellant and the respondent, so that the appellant is prohibited from contending anything to the contrary of what has been determined and not challenged or resolved on appeal to the District Court, or by way of further appeal to the High Court or Court of Appeal. 
[37]
The further basis on which ACC submits that leave to appeal should not be granted is that Judge Beattie has noted the effect of Peck in light of the dates of the decisions in issue and the dates on which certain amendments to the provisions of s 117 came into force. This aspect of the matter was closely addressed by Judge Beattie in paragraphs [15] and [16] of his decision; and it was on this basis that Judge Beattie concluded that the respondent's 5 November 2004 decision, as later confirmed by Ms Welsh's review decision of 22 April 2005, was in every respect correct. 
Relevant Legal Principles 
[38]
Section 162 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 provides: “A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court appeal to the High Court.” 
[39]
It is a settled requirement that an intending appellant identify the error of law said to require the grant of leave to appeal, and that any such point of law must be shown to be capable of bona fide and serious argument so as to qualify for the grant of leave to appeal. 
[40]
It is also accepted as settled in this area that Courts considering applications for leave to appeal should take care to avoid allowing factual issues to be dressed up as questions of law, when the former are proscribed; although where a mixed question of fact and law is involved, the way the District Court treats facts can, in certain circumstances, amount to an error of law. 
[41]
Even where a point of law is identified, the Court has an extensive discretion in relation to the grant or refusal of leave, which is to be exercised so as to ensure the proper use of scarce judicial resources. On this basis, leave to appeal is not something that is to be granted as a matter of course. 
[42]
Beyond that, errors of law may be shown in circumstances where: the District Court has misinterpreted or misapplied a relevant statutory provision; where there is no evidence to support the District Court decision; where the evidence is inconsistent with or contradictory of the decision, or where the only true and reasonable conclusion on the evidence contradicts the decision; where the Court has reached a conclusion which is irrational or is unsupported by reasons, or where the District Court has misapplied a test laid down by a higher Court. 
[43]
It is unnecessary to cite authority for these settled propositions but the following statement from the judgment of Randerson J in Knight v Accident Compensation Corporation (High Court Christchurch, CIV 2005-485-1582, 6 April 2006) at [18] has been judicially accepted as correctly summarising the applicable principles: 
“The appeal must raise some question of law or facts capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. That must be treated with this qualification, however, that s 163 is confined to questions of law only and the appeal is to be by way of case stated for the opinion of the Court of Appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice. ”
[44]
Clearly, an appeal pursuant to s 162 (as with s 163) is an appeal confined only to decisions which are contended to be wrong in law. In all other respects the above statement reflects the approach that is taken by the High Court, and by the District Court, in determining applications for leave to appeal. 
[45]
Section 147 of the Act is of relevance to the issues raised by this application for leave to appeal. It provides: 
“147 Effect of review decisions 
(1)
A review decision is binding on — 
(a)
the applicant and the Corporation; and 
(b)
any person who has a responsibility under this Act that is invoked in the decision; and 
(c)
any other party to the review …  ”
Conclusion 
[46]
Mr Hunt submits that the appellant has not identified any error of law in the District Court decision and that, in particular, the contention that the District Court did not follow an appropriate process in hearing the appeal is not made out on the facts. I agree. I also agree with Mr Hunt that the appeal was correctly determined on both of the said bases relied upon by Judge Beattie. 
[47]
Mr Hunt then notes that the suggestion that “issue estoppel” arose for the first time at the appeal hearing before Judge Beattie is incorrect. Specific advertence by the Court to that particular matter is shown by reference to the minute issued by Judge Beattie on 21 November 2005 from which it is clear that the issue, and the respondent's position in relation to it, was before the Court and known to the appellant. It was not, the introduction of “effectively a new defence of issue estoppel, at an appellate hearing” as submitted for the appellant. 
[48]
The appellant refused to sign the said consent form. This led to suspension of his additional weekly compensation until he eventually signed that form. There was a Review hearing about whether the appellant's refusal was unreasonable and that was found to be so. An appeal to this Court was abandoned. 
[49]
The same issue was considered in the later Review about the date on which full compensation was resumed and it was put that the appellant's lawyer had misunderstood the situation and thought the consent form was an IRP and had advised the appellant not to sign that form. The Reviewer did not accept that and found that the appellant's refusal was unreasonable and that ACC had been entitled to suspend the additional weekly compensation. In the earlier Review hearing the appellant had said he refused to sign the consent form because he thought that would put him under later ACC legislation. Perhaps, the appellant failed to properly instruct his solicitor. If the appellant did not sign the consent form because his solicitor incorrectly advised him, then he should take action against his solicitor. However, the inferences are that the appellant understood the nature of the form and ACC's need for it to be completed. In any case, Judge Beattie has found that there are no exceptional circumstances which create unfairness to the appellant. 
[50]
It seems to me that Judge Beattie has carefully considered all issues and related evidence and fully explained why he dismissed the appeal. I do not think any point of law is capable of bona fide and serious argument or warrants High Court consideration. I think that the appellant's litigation with ACC needs to be brought to an end. 
[51]
Accordingly, leave to appeal is declined. 

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