Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

Mallia v Accident Compensation Corporation (DC, 12/04/12)

Judgment Text

DECISION OF JUDGE M J BEATTIE 
M J Beattie Judge
[1]
The applicant seeks leave to appeal to the High Court from a decision of His Honour Judge D A Ongley, delivered on 21 October 2011 under decision number 309/11. 
[2]
The issue in the appeal before His Honour was the respondent's decision of 28 November 2006, whereby it declined to fund the costs of elective surgery to the applicant's left knee, that decision being made on the basis that the medical evidence identified that the medical condition pertaining to the appellant's left knee was that of a degenerative condition which had been rendered symptomatic by the knee injury sustained by the applicant in November 1998. 
[3]
The specific medical condition requiring surgery was identified as medial compartment osteoarthritis. 
[4]
As was noted by Judge Ongley in his decision, the applicant had cover for a soft tissue injury when he twisted his left knee in November 1998, he having slipped on a wet patch of grass whilst walking his dog. He identified that the circumstances suggested a sprain injury rather than a traumatic injury. 
[5]
The respondent's primary decision proceeded to review and for the purposes of that review further medical evidence was introduced on behalf of both parties. It was the Reviewer's decision dated 9 April 2008 that she was not satisfied that the applicant had proved on the balance of probability that the arthritis in his left knee had been caused by his covered accident, and therefore the respondent's primary decision was confirmed. 
[6]
When the matter came on for hearing on appeal before His Honour Judge Ongley, further medical evidence was introduced, being a further medical report from Mr Ian Denholm, Orthopaedic Surgeon, whose advice was that the degenerative condition of the appellant's knee was in fact post-traumatic degenerative change consequent upon the 1998 accident. 
[7]
The respondent introduced a further specialist medical report from Mr Barry Tietjens, Orthopaedic Surgeon, who had considerable experience in knee injuries and surgery. Finally, a response to Mr Tietjens' report was introduced from Mr Denholm. 
[8]
Judge Ongley referred to the medical evidence which had been presented in the appeal, and in his decision he stated that the evidence of Mr Denholm, which was the only evidence supporting the causative link, was insufficient to support a claim for left medial compartment arthritis caused by the 1998 injury. He identified that the evidence he had received was consistent with the natural development of arthritis aggravated by the injury event of 1998. He further stated that the most persuasive medical opinions were those of Dr Austen of the Respondent's Clinical Advisory Panel, and Mr Tietjens. 
[9]
It was on the basis of Judge Ongley's findings on the evidence that he determined that there was therefore no basis for the respondent to fund the surgery sought, and the appeal was dismissed. 
[10]
For the purposes of the application for leave to appeal the Court has received significant written submissions from the applicant himself, and he has made significant comment about the evidence which was not supportive of his claim, and in effect he has asserted that the decision made by Judge Ongley was not in accordance with the evidence and he contends that the evidence and opinion of Mr Denholm should have been preferred. 
[11]
The Court also received written submissions from Mr J Parry, Counsel for the Respondent, and it was his primary submission that the matters raised by the applicant all relate to matters of fact and which involve the weight to be given to the evidence which Judge Ongley had received. Counsel submitted that the decision in issue was one which was wholly a question of fact and that the conclusions reached by Judge Ongley were well supported by credible evidence, and as such the findings could not constitute an error of law. 
[12]
It is the case that in his decision Judge Ongley has referred to and considered all the relevant medical evidence, and he came to a decision as to which was the evidence which was to be preferred, and he found that the nature of that evidence was that the medical condition in issue was a condition that was caused wholly or substantially by a disease process and not as a consequence of traumatic injury. 
[13]
The decision of His Honour Judge Ongley is a decision, I find, made wholly on the medical facts with which he was presented and his decision did not involve a determination of any question of law, there being no dispute that the only question of law involved in this case was whether the applicant could establish a causative link between the medical condition for which surgery was sought and his covered personal injury. 
[14]
It was Judge Ongley's decision that on the facts that causative link could not be established. 
[15]
For the record, I note that Section 162 of the Act identifies that a party to an appeal can seek the leave of the Court to appeal to the High Court, where it is contended that the decision was wrong in law. In the present case I find that the decision was wholly one of a determination of the issue on the facts and involved no question of law. Accordingly, therefore, there is no basis to grant leave to appeal Judge Ongley's decision to the High Court as there is simply no question of law which is in issue in this appeal. 
[16]
For the foregoing reasons, therefore, the application for leave to appeal to the High Court is hereby declined. 

From Accident Compensation Cases

Table of Contents