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Accident Compensation Cases

Perry v Accident Compensation Corporation (DC, 12/05/11)

Judgment Text

RESERVED DECISION OF JUDGE P F BARBER 
Judge P F Barber
[1]
My substantive decision herein is [2011] NZACC 92 issued on 21 March 2011. The issue was ACC's declinature of a late review application against ACC's decision declining surgery costs. In between the lodging of the application and my hearing the appeal regarding it on 24 November 2010, the appellant underwent the surgery under the public system. Although I allowed the appeal, I concluded my said decision as follows: 
“[32]
For the above reasons, this appeal is allowed so that, technically, it should now go to review on the substantive issue about the appellant's entitlement from ACC to shoulder surgery which has already been provided under our public health system. Presumably, there is dispute whether the appellant's symptoms as at 11 February 2009 were as a result of her injury of 15 December 2006. I do not know whether the appellant has incurred costs in relation to this appeal so that I reserve leave to apply in that respect and with regard to any other consequential matters, particularly, as the shoulder surgery issue is now academic. ”
[2]
It is also helpful to note para [31] of my said decision which reads: 
“[31]
Simply put, l accept that the appellant was so traumatised by her pain, and had significant problems with her eyesight, that she did not know that she needed to file her application for review within three months of ACC's decision or, indeed, how to go about that. Also, she was entitled to believe that her physiotherapist was looking after such interests as her agent, even though the arrangement between them was a little loose; and he unreasonably failed to ensure that the application was made within the required time. ”
[3]
In response to my above concerns (see para [32] as above), the appellant's advocate emailed my Registrar on 15 April 2011. The advocate seemed to be seeking ongoing physiotherapy costs and “any after care of operation” on behalf of the appellant. The advocate states “There is a distinct possibility further surgery may be necessary as the shoulder still does not have adequate movement and he refers to constant pain being suffered by the appellant. Frankly, the advocate's emaH is somewhat vague and also refers to “unfinished business”
[4]
As Ms Becroft puts it, if the appellant now wishes to pursue the substantive issue, which is entirely academic given that the surgery (having taken place) is no longer required, she is now entitled to do so at Review. Ms Becroft then continues: 
“1.5
It was apparent at the hearing that the Appellant is in fact now seeking costs towards post surgical treatment, as Counsel indicated at the hearing, the Appellant continues to have cover for her index injury, so she is entitled to make further applications for treatment, which will then be the subject of further primary decisions of the Corporation. The Appellant will however likely face the same issues of causation in any subsequent decisions. 
1.6
The Appellant's Advocate refers to ‘unfinished business’ in his recent email to the Court — that might well be the case, but the correct forum for any such business is not this Court. ”
[5]
I have offered the appellant the opportunity to make a sensible claim for costs, such as legal costs. That has not been properly addressed. In terms of my reference to “any other consequential matters” in my said para [32], the proposals for the appellant seem to relate to costs incurred or to be incurred but which have not yet been applied for to ACC and so do not currently come within my jurisdiction. Nothing constructive has been put to me in terms of my reservation of leave to apply, so I make no further order but I still reserve leave to apply. I note that my said decision of 21 March 2011 allowed the appellant's late review application on the basis of there being extenuating circumstances. Accordingly, it is up to the appellant whether or not to take to Review ACC's 11 February 2009 decision declining to fund shoulder surgery for her. 

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