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Accident Compensation Cases

Nicholl v Accident Compensation Corporation (DC, 22/09/09)

Judgment Text

DECISION OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
This appeal was called for Directions on 22 September 2009 consequent upon the failure of the appellant to comply with a Directions Order made by this Court on 22 April 2009. 
[2]
By that Directions Order the appellant was required to file and serve his submissions in support of his appeal within 35 days of receipt of the notice. That Direction went on to state that in the event of failure to file such submissions, this appeal and two others in a similar vein, would be dismissed. 
This present appeal arises from a Review decision of 12 August 2008 which confirmed the respondent's primary decision of 30 January 2008, that the appellant was not entitled to cover under the Act for his skin condition known as seborrheic dermatitis. it was the appellant's contention that this condition was caused by stress arising from chronic lower back pain from a 1996 lumbar sprain injury for which he had cover. 
[3]
The issue of whether the appellant's seborrheic dermatitis could be causally linked to the appellant's lumbar sprain injury has been determined by the decision of this Court dated 9 March 2007 under Decision No. 45/07. In that appeal the Court received specialist medical evidence on the issue, including advice from the New Zealand Dermatological Society. 
[4]
In the Court's decision at paragraph [17] that evidence is noted and it is stated as follows: 
“[17]
In the case of the appellant's dermatitis, the scientific evidence is that the cause of Seborrheic dermatitis is wholly unrelated to physical injury such as low back strain, but rather it arises as an inflammatory reaction from the proliferation of a skin inhabitant, namely a yeast called Malassezia. The Court accepts that explanation of causation as provided by the New Zealand Dermatological Society. ”
[5]
The legal question as to whether the aggravation of the appellant's dermatitis by the consequences of a covered injury established the necessary causative link as a matter of law was also considered in that decision. The Court noted the High Court decisions of Fowlie AP 50/00 (Wellington Registry) and McDonald AP 2/02 (Christchurch Registry) where it was confirmed that medical conditions or diseases which may be triggered, accelerated or progressed as a consequence of the covered personal injury are not covered, as the essential element of causation is not present. 
[6]
In the decision of Nichol! (45/07) the Court found that the seborrheic dermatitis was not caused by the appellant's stress from his chronic pain syndrome, it was merely exacerbated or aggravated by it. The dermatitis was caused by quite separate and distinct factors totally unrelated to the covered personal injury. The Court therefore held that the dermatitis condition cannot be the subject of cover and consequently cannot be the subject of a claim for treatment costs. 
[7]
In the present appeal the appellant is seeking cover for that same skin condition. The issue in this appeal is exactly the same as that which was determined in the previous appeal decision, referred to above, and I find that the issue must be considered finally determined, that is res judicata. For this reason, therefore, this appeal is dismissed. 

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