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Accident Compensation Cases

Verhoef v Accident Compensation Corporation (DC, 01/05/12)

Judgment Text

Roderick Joyce QC Judge
This application relates to the 9 February 2012 judgment of Judge Beattie on an appeal arising from the Corporation's decision of 16 December 2010 determining that Mr Verhoef was not eligible for an independence allowance for his covered injuries because when the percentage for lump sum payments previously received was deducted there was in fact a zero percent whole person impairment remaining under the AMA Guides assessment. 
Subsequent to receipt of that judgment Mr Verhoef had written to the Tribunal to say he wanted to appeal Judge Beattie's determination and his communication had been treated by the registry as an application for leave to appeal to the High Court, that of course being the only appeal option open to him at this juncture. 
Judge Beattie's judgment had been concerned with four claims: 
Gradual process disease dated 1 November 1977; 
Elbow strain dated 25 March 1982; 
Occupational noise induced hearing loss dated 17 November 1986; 
Lung cancer dated 28 April 1998. 
In respect of the first three claims (which gave a combined percentage of disability of 38.2 percent) lump sum payments had been received by Mr Verhoef. 
Following a November 2010 application for an independence allowance in respect of the four covered injuries, requisite assessments had followed such as recorded no current impairment for the elbow or gradual process disease, eight percent in respect of the hearing and 31 percent in respect of the lung cancer — figures leading, under the AMA Guides, to a WPI of 37 percent. 
However the problem remained for Mr Verhoef that, after deduction of the whole of the earlier Lump Sum Impairment payment percentages, the result was zero. In short, payment of pertinent here entitlements under the 1982 Act had been (in percentage assessment terms) more than the most recent assessment, and the legislation is designed to avoid double dipping, 
In his letter, which the Court will benevolently treat as notice of an application for leave to appeal on points of law, Mr Verhoef referred to some number of matters which, unfortunately, have nothing to do with the issues that were before Judge Beattie save to the extent of some suggestion by Mr Verhoef that he could not follow the percentages. 
Through counsel (Ian Hunt) the Corporation went to some trouble to set out the background and identify the matters which had been in issue. The analysis provided justifiably included the observation that what Mr Verhoef had put forward was addressed primarily to his perception of the facts. 
Mr Hunt acknowledged that Mr Verhoef may have had difficulty in understanding how the percentages were reached and their relationship with the lump sum figures in question — the amounts previously paid on that account. 
But to the extent that Mr Verhoef might be trying to say that Dr Wright's assessment was flawed in some material fashion, Mr Hunt made the obvious point that there was no contrary medical evidence and that the assessment had plainly been made with previous medical reports in mind. 
Significantly, in present context, nothing raised by Mr Verhoef in his original communication pointed to any outstanding for useful argument legal issue and of course an appeal to the High Court is only open in terms of an arguable case of legal error. 
So far as Mr Verhoef's problems with understanding the percentages are concerned Mr Hunt is to be commended for taking the trouble he did (at paras 8-10) to set out the facts and figures and, hopefully, they on further consideration by Mr Verhoef may assist him to follow what has happened. 
Indeed that Mr Verhoef's initial response to Mr Hunt's submissions made no further reference to the percentage issues (and, it needs to be said, made no pertinent to any error of law point either), may indicate that Mr Hunt's endeavours have already served the purpose. 
Mr Verhoef took an extra bite from the submission process cherry by lodging another letter or submission following his first response to Mr Hunt's submissions. But this letter is in fair degree about his personal experiences with his disabilities. He also seems to suggest that lump sum payments made were in lieu of loss of income when there is no sign of that being the case. 
He attaches a very old (1996) note about his hearing disability and a 28 September 2008 report to ACC from Dr Drennan, respiratory and sleep disorders physician, which however ends on the note that “it was not done as part of a formal ACC assessment which might focus far more on the disability assessment than on diagnosis and treatment”
It is obvious that, right back at the review stage, Mr Verhoef had referred to this report as well as others and indeed that is acknowledged by Mr Hunt at paragraph 12 of his submissions. 
When I go back as far as the review decision it is indeed obvious that Mr Verhoef seeks now to re-rehearse already rehearsed arguments and promote consideration again of previously adduced evidence, steps quite beyond the purview of the relief affordable an appellant under s 162 of the Act. 
All in all I find nothing in the papers before me such as does or even might disclose an arguable error of law that could properly be referred for the consideration of the High Court, 
The application for leave to appeal to the High Court on a question is law is dismissed. 

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