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Accident Compensation Cases

Hair v Accident Compensation Corporation (DC, 11/05/11)

Judgment Text

Judge P F Barber
The Issue 
Was ACC correct in its 14 January 2009 decision about the appellant? This was that no extenuating circumstances exist for the appellant to lodge a Review application later than three months from ACC's 29 July 2008 decision declining the appellant cover for accident injury. 
Basic facts 
In August 1985, the appellant had a motorcycle accident. He suffered head and/or neck injuries during that accident, but left the accident scene before any medical personnel attended, and has no memory of the accident. 
On 29 July 2008, after a history of irresolvable neurological complaints, the appellant applied to ACC for cover in respect of injuries suffered in the 1985 accident. In a 29 July 2008 decision ACC declined the appellant's claim for lack of medical information to show his injury resulted from an accident and because the claim was sent to ACC more than 12 months after the date of injury. The appellant was advised of his review rights and that he had the right to seek a review of ACC's 29 July 2008 decision within three months i.e. by 29 October 2008. 
In December 2008, the appellant sought review of ACC's said decision. ACC then considered whether extenuating circumstances applied to affect the appellant's ability to lodge his review in time. ACC issued a decision on 14 January 2009 in which it found that no extenuating circumstances existed. That decision was upheld on Review, and is now appealed to this Court. 
The Review Hearing (before Reviewer Mr D Walker) 
At review on 2 April 2009 the appellant argued: 
Advice from his case manager after first being declined cover was not “a very helpful response”
The appellant was only advised that he had no evidence at the time of the injury; 
Although he was advised that appeal rights were “on the sheet”, no official application for review form was sent and he found it difficult to write a letter without the structure of a form; 
The appellant struggled to find medical notes from the time of the accident; 
The appellant was having problems with brain functioning due to the reducing medications and waiting to commence brain training; 
The correct process in making an appeal was not clearly explained and he did not know about the time period to respond. 
At the review hearing, the appellant gave sworn evidence. This included: 
He never received an application for review form from ACC; 
He was reducing medications, in accordance with a weaning process that took approximately six months; 
The reducing of medications caused an increase in symptoms including being unable to think, anxiety attacks, and trembling hands; 
He shifted house in August 2008; and 
ACC did not explain to him how to fill out the review form. 
On 23 January 2009, Dr John Cook had provided a note to ACC saying: “I have encouraged him to proceed with the appeal as he was unwell at medication changeover and was not functioning well. A list of medications followed, but it was thought unclear whether these medications were those taken by the appellant at the relevant time, or what effect they had on the appellant. 
The Reviewer decided: 
“ … I find there is no merit to the appellant's claim for extenuating circumstances because I consider he was in control of the process of lodging a review the whole time. I consider the issues about need to obtain further medical evidence, while frustrating, are incidental to the matter of actually lodging a review. I also note the evidence about the effects of withdrawing from his Rivotril medication is not supported by medical evidence. Ultimately, I find that his circumstances do not amount to something that has interfered with his ability to apply for a review. ”
Evidence to me from the appellant 
The appellant gave evidence before me and confirmed the evidential aspects of his submissions filed on 27 April 2010. 
He seemed to be saying that he had been caught unprepared at the review hearing and he particularly disputed the statement in the review decision reading “However in relation to medication withdrawal, he did not provide any medical evidence that supported his submission that it affected his ability to lodge his review in time.” The appellant said he had provided ACC with a letter dated 23 January 2009 from his GP stating: “I have encouraged him to proceed with the appeal as he was unwell at medication changeover and was not functioning well
The appellant also took issue with a finding of the Reviewer “I also note the evidence about the effects of withdrawing from his Rivitrol medication is not supported by medical evidence. The appellant seemed to be submitting that the Reviewer had not absorbed all the medical evidence available. 
In any case, the appellant submits that there were medical circumstances beyond his control which prevented him pursuing the process of lodging an appeal against ACC's 29 July 2008 decision within the specified time of three months from then. 
Before me he added that his GP had told him (at material times) to get a lawyer but that he was withdrawing from a powerful medicine which had strong side effects. I understood that the medication was Clonazepam and that the appellant had then been using that for about five years but was trying to withdraw from it, little by little, over a six month period at material times. He said he should have been doing that in hospital rather than as an outpatient as he did; and he found withdrawing from that medication was very difficult for many months over which he was most unwell. He said this meant that his cognitive ability was so bad he could not read a document, nor focus his mind, and his hands badly shook. He said he was endeavouring to come off that medication so that he could see a neurologist about the problems in his head and he was able to do that on 24 April 2009. 
Relevant law 
Section 135 of the Accident Compensation Act 2001 provides that an application for review of an ACC decision must be made within three months of the date of the decision for which the appellant seeks review. The only exception to this requirement is set out in s 135(3) of the which provides: 
Despite subsection (2)(f) and (g), ACC must accept a late application if satisfied that there are extenuating circumstances that affect the ability of the claimant to meet the time limits, such as — 
where the claimant was so affected or traumatised by the personal injwy giving rise to the review that he or she was unable to consider his or her review rights; or 
where the claimant made reasonable arrangements to have the application made on his or her behalf by an agent of the claimant, and the agent unreasonably failed to ensure that the application was made within the required time; or 
where ACC failed to notify the claimant of the obligations of persons making an application. ”
In Cohe (95/05), Judge Beattie held: 
“ … the meaning and purpose of the provision is that the extenuating circumstances must relate to the ability of the claimant to lodge the application within a three month period. lt cannot extent to cover extraneous reasons such as capriciousness, forgetfulness, or any circumstances that are within the control of the claimant. ”
That passage has been cited with approval in numerous subsequent cases including Hafi (107/2009) and, paraphrased in Green (200/07) where Judge Beattie said: “The three examples provided for in s 135(3) make it clear that such circumstances do not extend to reasons such as forgetfulness, capriciousness, or situations which don't pertain to the claimant personally.” 
Additionally, the circumstances to be considered, when an extension is sought, do not include the length of time after the three month period has expired. Accordingly, even a comparatively short delay does not weigh in consideration of whether time should be extended or not: Green (200/07)
Mr Evans submits that the appellant has provided scant evidence of circumstances which may bring this case within s 135(3) of the Act. He puts it that in relation to the matters raised by the appellant, there are the following points: 
There is no medical evidence provided to support the suggestion that the appellant was unable, because of his medical circumstances, to submit an application for review; 
The appellant's claim that he was not advised of review rights is contrary to ACC's documentation and, particularly, its decision letter of 29 July 2008 saying: “If you are still not satisfied, you can ask for an independent review of our decision. The review process is outlined in the enclosed Working Together Fact Sheet.” 
A copy of this letter was sent to the appellant's general practitioner. 
The symptoms described by the appellant are not of the sort which would so affect or traumatise him that he would have been unable to seek a review; 
The time between the claimed injury and the 29 July 2008 decision is some 23 years, during which time the appellant achieved a University degree and held employment in numerous jobs. This indicates (Mr Evans puts it) an ability to function despite the claimed injury and the vicissitudes of fortune now advanced; 
After 14 January 2009, when ACC advised the appellant that it would not accept his late review application, the appellant was able to quickly prepare an application for review form (undated), which was received by ACC on 28 January 2009. 
Accordingly, Mr Evans submits that the appellant was able to prepare a review within the allocated time; there were no medical matters preventing him from doing so, rather his failure was due to his oversight or carelessness in not observing the required time limits; and subsequent to submitting the first application for review, the appellant was able to respond to ACC's correspondence clearly and cogently within a matter of days. 
It is accordingly submitted for ACC that no extenuating circumstances exist to justify the extension of time for review of ACC's substantive decision, and that this appeal should be dismissed. 
In further oral submissions, Mr Evans referred to the key period as between July and December 2008 and that I need to decide whether the appellant was unable to lodge an application for Review of ACC's decision of 29 July 2008 in a timely way by 29 October 2008. 
Mr Evans pointed out that the appellant is clearly articulate, intelligent, and educated to university degree level. He submits I do not have medical evidence that over the crucial period, the appellant was so impaired that he could not file his review application in time. To my suggestion that I had appropriate evidence from the appellant, Mr Evans maintained that evidence to be vague as to the time period of the appellant's suffering. However, the appellant made it clear that he started his withdrawal from the medication efforts in about May 2008, but stopped for a time then resumed the withdrawal process; and it took eight months to get off Clonazepam; and that he was in that withdrawal state over June to December 2008. He is now on other medication for mental health problems. 
Mr Evans put it that it would be difficult for me to have an understanding of the effects of the medication on the appellant. I indicated that I do have experience of observing the type of problem undergone by the appellant, and Mr Evans seemed to agree that the appellant could be credible but put it there needed to be backup medical evidence. At that point it was agreed (on 23 November 2010) that the case be adjourned part-heard on the basis of my following order: 
“Having part heard this appeal I find that the argument of the appellant could well be credible, but I need the advice of a medical specialist to confirm or discount that. Accordingly, in the interests of justice I direct that, at the expense of ACC, I receive an assessment from a suitable specialist to be selected and briefed by Mr Evans. ”
Very helpfully Mr Evans proceeded accordingly and provided the Court with a 24 March 2011 memo, in which he referred again to the 24 April 2009 report from Professor Tim Anderson and to a further note dated 17 December 2010 provided by the appellant from his GP. Mr Evans then recorded that he sent a letter dated 3 March 2001 Professor Carl Burgess, Pharmacologist and Professor of Medicine at the Wellington School of Medicine in the University of Otago, in terms of my above consent order. 
Mr Evans also advised that Professor Burgess requested a copy of the report from Professor Tim Anderson which was supplied and responded by email of 23 March 2011 that there is “ … no evidence that gradual withdrawal of Benzodiazepines results in memory disturbance or difficulties with comprehension”
On that basis, Mr Evans submits that there are no extenuating circumstances which would justify granting the appellant an extension of time to take ACC's 29 July 2008 decision to Review; so that the case before me should be dismissed. 
There were a number of responses from the appellant to that conclusion of Professor Burgess. By email of 28 March 2011 to my Registrar, the appellant put it that he understood he was to personally see the specialist and that did not happen and he submitted (with some attachments) that Professor Burgess's conclusion directly contradicted material already provided by ACC. He also put it that he had been bullied by a lawyer from ACC in December 2010 when that lawyer sought the appellant's entire medical file for the past three years. That allegation was, of course, subsequently denied by Mr Evans who mentioned how agitated the appellant had become when Mr Evans sought information for the specialist. I know that the appellant would have been receiving the utmost courtesy and assistance from Mr Evans, and that an allegation of bullying by him is nonsense. As Mr Evans understood it, I had only required that an appropriate specialist be consulted and not that he personally see the appellant. 
There is also a further email from the appellant to my Registrar of 13 April 2011 noting that the question put to Professor Burgess was to “provide a medical opinion as to whether the medication that he was taking (and specifically Clonazepam) would have impaired [the appellant's] ability to understand ACC's decision of 29 January 2008 and then lodge an application within the three month time limit”. In fact, the decision in question was that of 29 July 2008. However, the appellant puts it that is a two part question as to whether the appellant could have understood the decision and also whether it would have impaired his ability to lodge an application for review in time. The appellant noted that the medical opinion was that it was “highly unlikely that he could not understand that he had to lodge the application within three months”. The appellant then continued his email: 
“I don't think this has sufficiently answered the question for the following reasons: 
It was not in my testimony that I did not understand the decision or I simply forgot. I stated that the issues surrounding the application were complex and that / had extreme anxiety and tremors and difficulty in formulating a response to the decision due to the severity of the withdrawal symptoms of this drug. No other withdrawal symptoms have been commented on by this medical opinion except comprehension. 
Without meeting with the Professor, he could not have understood my state of mind at the time of withdrawal. My original testimony as to the drug's adverse symptoms were never presented for opinion. 
In summary I do not consider they have followed the direction of the Court, that I see a relevant medical specialist. The medical opinion has failed to answer the question sufficiently. In short ACC has failed to provide enough medical evidence that there were no extenuating circumstances that would justify the extension of time and the appeal should be upheld. ”
Of course, the onus is on the appellant, not ACC, to show that I should grant his application; and the standard of proof is the balance of probabilities. 
To some extent there is medical evidence to support the assertions of the appellant, about his very limiting state of health at material times, from his GP and from the 24 April 2009 report of Professor Tim Anderson (which is somewhat after the event). However, in any case, if I believe the appellant that he was so affected by his relevant injury as to have been unable to consider and apply his review rights, then that does not need to be supported by medical evidence. 
From nearly 30 years experience as a District Court Judge in many jurisdictions, I am conscious that it is often difficult to know whether to believe a witness or to what extent to believe a witness. It is possible for a witness to become hazy and confused over time. Broadly, in assessing credibility, it is my practice to look at a witness's evidence not only in its context but in the context of the total evidential fabric of the case. To some degree, I take into account a witness's manner, demeanour and general body language when giving evidence and being cross-examined, but I am conscious of cultural factors and that demeanour and body language can be misleading, e.g. a witness may be affected by nervousness, or the witness may have a strong personality. There is no cultural factor arising in this case. A witness's evidence is probably best tested against the known facts and for its inherent probability and consistency, and evidence needs to be related to sensible inferences. In terms of that general approach and my 30 years experience at endeavouring to ascertain who is telling the truth, I have no reason to doubt the credibility of the appellant. I am satisfied that, at material times, he was too ill to deal with filing a timely Review application regarding ACC's 29 July 2008 decision; i.e. his ability to meet the said time limit was badly affected. 
I accept that the appellant is highly educated and intelligent. However, at material times he was under the control of mind-bending medication. Indeed, he was trying to withdraw from one particular drug, namely Clonazepam. That can be a debilitating experience. I can understand and I accept the appellant's evidence that, at material times, he was so affected by an alleged consequence of the alleged relevant personal injury giving rise to review rights that he was unable to physically pursue them. I accept that he was offered reasonable assistance from ACC about his option to seek a review; but he needed to be well enough to process that. 
For the above reasons I find that extenuating circumstances do exist in terms of s 135(3) of the Act so that the appellant's substantive issue must be heard by a Reviewer in the usual way. 

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