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Accident Compensation Cases

X v Accident Compensation Corporation (DC, 08/10/09)

Judgment Text

RESERVED DECISION OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
This appeal arises from a review decision given on 11 March 2009. In this appeal counsel for the appellant is not contesting what might be considered the core decision given by the Reviewer, but wishes this Court to make certain determinations regarding the review decision as a whole, and also make a determination whether the Reviewer was correct to not award costs. 
[2]
This is a case where issues pertaining to mental injury arise and counsel for the appellant has sought an order under Section 160 of the Act. In the circumstances I consider such an order to be appropriate and accordingly I make an order forbidding the publication of the name of the appellant or of any particulars likely to lead to his identification. 
[3]
The background facts relevant to the issues required to be determined in this appeal are not in dispute and may be stated as follows: 
In July 2007 the appellant, then a **** manager by occupation, suffered an injury to his face during a game of soccer. 
That injury was diagnosed as a zygomatic fracture. This injury caused incapacity and the appellant sought and was granted weekly compensation. 
In April and May 2008 the respondent obtained two reports from Dr L J Du Plessis, Neurologist. 
Dr Du Plessis summarised her assessment as follows: 
“In my opinion other factors should be sought to explain Mr XXX ongoing symptomatology other than brain trauma. Possibly psychosocial factors and stress and conflict at work may be factors that should be taken into consideration. ”
[4]
The respondent also obtained a report from Dr James Hegarty, Psychologist, who opined that the appellant may have ongoing psychological problems and that it was not possible to attribute these ongoing difficulties to his head injury of July 2007. 
[5]
Consequent upon those reports the respondent issued its primary decision on 8 August 2008 suspending entitlements to the appellant on the grounds that his ongoing medical problems, rendering him unfit to return to full-time work as a **** manager, were for reasons other than trauma related injuries suffered in the accident of July 2007. 
[6]
The appellant sought a review of that decision and prior to any review hearing counsel for the appellant wrote to the respondent stating, inter alia, as follows: 
“I now request that ACC turn its mind specifically to the issue of cover for a mental injury because of the physical injury sustained on 21 July 2007. ”
[7]
The review hearing took place on 2 March 2009 at which time no cover decision in respect of mental injury had been given by the respondent. 
[8]
At the review hearing, counsel for the appellant referred to the fact that Drs Du Plessis and Hegarty had suggested that the appellant may be suffering from a mental injury which was an outcome of his physical injury, and counsel submitted that the respondent should have investigated that issue further before making any decision under Section 117 of the Act. 
[9]
In the course of her decision, the Reviewer, Jane Wilson, considered the reports of Drs Du Plessis and Hegarty, and made a finding that the appellant's mental condition was not the result of the physical injuries for which he had been given cover. 
[10]
At the conclusion of her decision the Reviewer stated that she dismissed the application for review and that the appellant's physical injuries from his accident did not cause his present inability to work. 
[11]
The Reviewer went on to state: “No award of costs. The review was not reasonably brought.” 
[12]
In the Notice of Appeal filed in relation to that decision, Counsel gave as grounds, inter alia, “The Reviewer has acted outside her jurisdiction, making a finding on cover of a mental injury.” 
[13]
Prior to the hearing of this appeal Counsel for the Appellant indicated that she was not contending that the Reviewer's core decision was wrong, namely that the appellant's ongoing incapacity was not being caused by the physical injuries suffered in the accident of July 2007. 
[14]
Counsel accepted that there was no evidence which could support such a contention. 
[15]
Counsel submitted, however, that the Reviewer had overstepped her jurisdiction when she purportedly made an adverse finding on the question of cover for a mental injury arising from a physical injury when that issue had not, at that stage, been determined by the respondent itself. 
[16]
Counsel submitted that the finding of the Reviewer was likely to adversely affect the appellant's claim for cover in that regard. 
[17]
Finally, counsel submitted that the decision not to award costs was not a proper exercise of the Reviewer's discretion, as there were issues which counsel had brought at the review which were serious and required consideration. 
[18]
Mr Hunt, for the respondent, advised the Court that it did not oppose the submission of counsel for the appellant that an award of costs at review was appropriate, but submitted that the decision of the Court in this appeal should be to confirm the correctness of the core decision of the Reviewer, although he too accepted that the Reviewer had overstepped the bounds of her jurisdiction by making findings on the issue of mental injury. 
[19]
From the foregoing, it can be seen that there was a significant degree of commonality of the respective positions of the appellant and the respondent, and for this reason the Court is prepared to deal with this appeal largely in the manner submitted by counsel for the parties. 
[20]
As a primary finding, I do rule that the Reviewer went beyond the jurisdiction that the decision under review would allow. The Reviewer was aware that an application for cover for mental injury was with the respondent, and indeed she noted that the matter was therefore separate. However, I find the following two paragraphs of her decision make it clear that she was making a finding and ruling on the question of mental injury. Those parts of her decision are as follows: 
ACC argued the mental injury was obvious before the accident, at no time had the GP considered the accident had caused the mental injury and the lawyer only raised the matter in November 2008. 
Considering the reports from Drs Du Plessis and Hegarty conclude ACC was correct in finding Mr an mental condition was not the result of the physical injuries to his face. While both doctors explore different options the conclusions in their respective reports are clear the accident did not cause Mr continuing problems. ”
[21]
The next matter is the question of review costs and as earlier noted, counsel for the respondent accepted that this was a situation where the Reviewer ought to have allowed costs, and accordingly this appeal on that issue is allowed and I direct that DRSL pay the appropriate costs on review to counsel for the appellant. 
[22]
Insofar as costs on this appeal are concerned, it is the case where counsel for the appellant seeks costs and counsel for the respondent submits that the costs should lie where they fall. 
[23]
In the circumstances I find that each party has a certain measure of right on their side. From the appellant's perspective I consider it was appropriate that the issue of overstepping jurisdiction be considered by this Court on appeal, and of course there is the decision to allow review costs, which was not opposed. 
[24]
On the respondent's side, there is the fact that the core decision of the Reviewer was correct and not likely to be overturned. It was the case that the point made by counsel for the appellant at review, namely the respondent should have investigated the mental injury aspect before making any decision affecting entitlements, has been overtaken by subsequent events which now include a deemed grant of cover for mental injury by virtue of the respondent not adhering to the time limits for investigation and decision as provided in Sections 57 and 58 of the Act. 
[25]
Taking all factors into account, I exercise my discretion by allowing a modest sum of costs reflecting the partial success which the appellant has had, and accordingly I award the sum of $750 costs to the appellant, together with any qualifying disbursements. 

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