Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Nee Nee v Accident Compensation Corporation (DC, 14/01/10)

Judgment Text

DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT 
Judge P F Barber
The Decision to Be Appealed 
[1]
The appellant seeks leave to appeal from a 26 March 2009 judgment of Judge M J Beattie (Decision No. 44/2009) in which His Honour commences as follows: 
“[1]
The issue in this appeal arises from the Review Decision of 28 March 2008, whereby the Reviewer determined that it had been reasonable for the respondent to finalise the appellant's Individual Rehabilitation Plan (IRP) in accordance with Clause 8(2) of Schedule 1 to the Act, on 8 February 2007. 
[2]
It is the appellant's contention, as submitted by his Advocate, that the manner in which the Review Hearing took place, and the issue which the Review addressed, was ultra vires, as being the consideration of the finalising of a Plan which was not the decision which was the subject of the Review. ”
[2]
Judge Beattie then set out the detailed background facts leading to his lucid decision commencing at paragraph 6 of his decision and I refer further below to Judge Beattie's reasoning. 
[3]
The respondent opposes the application for leave to appeal on the basis that the grounds raised neither a serious nor arguable question of law which warrants an appeal to the High Court. 
[4]
Pursuant to s 162(1) of the The Injury Prevention, Rehabilitation, & Compensation Act 2001, the appellant is only entitled to leave to appeal to the High Court on questions of law. 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 of 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. Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law. 
[5]
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. 
The District Court Judgment 
[6]
Judge Beattie identified the substantive issue before the Court as pertaining to the Individual Rehabilitation Plan (“IRP”) finalised by the Corporation on 8 February 2007 with regard to the appellant. The appellant had contended before Judge Beattie that the primary decision in question was the IRP finalised on 30 January 2007. 
[7]
As noted by Judge Beattie at his paragraph [12], irrespective which IRP was the subject of the review/appeal proceedings, the main point of difference between the parties in respect of the finalised IRP was the desire by the appellant to have the following “Outcome to be Achieved” included in the IRP, namely: 
(i)
To assist the IP to be able to work an optimal number of hours per week on a sustained basis; 
(ii)
The IP and the ACC will work together to find suitable paid work for the IP. The IP will engage in such work on an abatement basis. 
[8]
In its primary decision of 8 February 2007, ACC had declined to include this statement in the finalised IRP. 
[9]
The arguments for the appellant before Judge Beattie focused principally on matters of procedure, rather than the substantive decision. The appellant sought to have the review decision vacated and the matter remitted back to review for a fresh review hearing. 
[10]
Judge Beattie determined that the procedural arguments had no merit. He proceeded to consider the substantive issue and determined that ACC's finalising of the IRP, in its decision of 8 February 2007, was reasonable. The appeal was, accordingly dismissed. 
Appellant's Grounds for seeking Leave to Appeal to the High Court 
[11]
The appellant's present grounds for leave to appeal do not pertain to the substantive issue. The grounds focus entirely on procedural matters as follows: 
The review proceeding was brought from the respondent's decision of 30 January 2007 and not the decision of 8 February 2007; 
The appellant was not give sufficient notice at the review hearing that the reviewer would be considering the decision of 8 February 2007 — as such there was, allegedly, a breach of natural justice as the appellant did not have sufficient opportunity to present his case. 
My Reasons for Ruling 
[12]
It seems to me that the appellant's procedural allegations have no merit. Judge Beattie determined: 
“[9]
The Review hearing was conducted properly with the Reviewer considering the correct decision, namely the decision of 8 February, and he considered that decision in the correct context, namely whether that decision to finalise the IRP was reasonable in the circumstances. 
[10]
As can be noted from the Review decision which granted leave to the appellant to bring the application for review out of time, that decision made it quite clear that the particular decision to which an extension had been given for review was the respondent's decision of 8 February 2007, and I have set out above the parts of that review decision which clearly identified that to be the case. 
[11]
In those circumstances, I find that there can be no confusion as to what was the correct decision, despite the letter from the appellant's case manager purporting to identify the decision of 30 January 2007. 
[12]
This is not a case where there is any ground for requiring the matter to be again considered by the Reviewer, as the Reviewer has correctly and properly considered the substantive question, and contrary to Mr Harland's contention, I find that neither he nor the appellant could be considered as being taken by surprise. In any event the only bone of contention is the difference between the parties as to what ought to be the stated Outcome of this IRP. ”
[13]
In any case, even if the allegation of breach of natural justice at the Review hearing had substance, which it does not, any disadvantage to the appellant was cured by the appeal to the District Court which is a re-hearing. The appellant had sufficient time on that appeal to present his case. Judge Beattie indicated at paragraph [6] of his decision: 
“[6]
An appeal to the District Court pursuant to s 149 of the Act, is by virtue of s 155(2), a rehearing, where the Court considers afresh the questions of fact that have been presented to the Reviewer, and indeed any additional evidence which the parties may seek to introduce for the purposes of the appeal. ”
[14]
Miller J considered a somewhat similar issue in Prasad v ACC, CIV 2008-485-340 (Auckland Registry, 21 April 2009]. In dismissing the application for special leave, the High Court held: 
“[9]
On the first and second grounds, counsel argues that because the Corporation cancelled cover on the basis that the injury was not work-related, the reviewer had no jurisdiction to conclude that no injury had been suffered. Ms Prasad was taken by surprise, and that cannot be cured by rehearing on appeal to the District Court. 
[10]
However, Ms Prasad was represented in the District Court by the Combined Beneficiaries Union, and further medical evidence was provided in support of her appeal, in the form of an opinion of Mr Hooker, an orthopaedic specialist. Such evidence was admissible under s 155 and s 156. I accept that a procedural failing can be characterised as an error of law, but this one, if such it is, raises no question of principle and has no prospects of ultimate success. The District Court was plainly correct to conclude that the rehearing on appeal might and did cure any lack of notice before the reviewer …  ”
[15]
The main submission from the appellant that Judge Beattie's judgment creates a precedent permitting a Reviewer “virtually unlimited power to change the terms of reference of an ACC review at will” misconstrues both the nature and effect of the judgment. Judge Beattie simply determined that the Reviewer correctly identified the decision of 8 February 2007 as being the primary decision from which the review was brought and that the Reviewer had also correctly identified the substantive issue arising out of the finalised IRP. Judge Beattie did not purport, either expressly or implicitly, to confer any additional powers on the Reviewer. 
[16]
In any case, the issue as to which IRP was reviewed is, for all practical purposes, academic as only one substantive point of difference remains in respect of the IRP's, - namely, about the inclusion of the appellant's preferred “Outcome to be Achieved” as referred to above. On that issue Judge Beattie found: 
“[14]
The alteration to the Outcome made by Mr Harland, and which was itself deleted by the case manager in the finalised version, I find was not a reasonable requirement and certainly not in accord with the statutory provision relating to vocational rehabilitation. Section 80 of the Act sets out the purpose of vocational rehabilitation and those purposes are: 
(a)
maintain employment; 
(b)
obtain employment; 
(c)
regain or acquire vocational independence. 
[15]
The Outcome recited in the IRP by the respondent was in accord with that statutory purpose and the matters raised by the appellant are not in accord with that purpose, even if they were to ultim9tely be a state of affairs that may have come about at some point in the future. 
[16]
For the avoidance of doubt, I find that the requirement of the appellant as to the stated outcome he sought was not a requirement which, if not agreed to, was an unreasonable stance by the respondent. I agree with the finding of the Reviewer who stated: 
‘A determination of whether a claimant is able to work part-time or full-time is a wholly medical one and needs to be made by a medical practitioner and not on the basis of a claimant's self-assessment. ’”
[17]
As earlier noted, there is no dispute as to any outstanding time-framed interventions referred to in the IRP, and in fact the appellant had earlier undergone both Initial Occupational and Initial Medical Assessments and vocational rehabilitation had moved on to the point where the combined determination of those respective assessors indicated that there were a number of work-types for which the appellant would be suitable for full-time work. 
[18]
Leading on from that, the Court was informed that the respondent had made a determination of Vocational Independence by decision dated 7 January 2008, and that determination identified the appellant having attained vocational independence in six separate work-types. 
[19]
In summary, therefore, this Court determines that the finalising of the appellant's IRP by its decision of 8 February 2007, was reasonable in the circumstances and that the appellant's IRP was from that date a valid document for reference in relation to the appellant's path of rehabilitation. ”
[17]
In my respectful view, Judge Beattie has thoroughly and clearly laid out the correct answer to that substantive issue of this case. 
[18]
The appellant also contends that there are anomalies with the transcript and recording of the review hearing but does not indicate how, if at all, this contention affects his application for leave. 
[19]
Accordingly, the application for leave is hereby dismissed. 

From Accident Compensation Cases

Table of Contents