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Accident Compensation Cases

Howard v Accident Compensation Corporation (DC, 27/11/12)

Judgment Text

Roderick Joyce QC Judge
This was an application for leave to appeal on a question of law under s 162 of the Accident Compensation Act 2001. The application was supported by submissions from John Howard, husband of Maree Howard, the applicant, and opposed by submissions for the corporation from Mr McBride. 
The application arises from a 29 June 2012 judgment of Judge Ongley to which I will first refer. 
The 29 June 2012 judgment 
As the Judge identified at the outset of his judgment this was an appeal concerning a decision by Care Advantage suspending entitlements on the ground that Mrs Howard had unreasonably failed to permit examination and assessment by an occupational physician, Dr Kenny. 
Generally speaking the narrative immediately following is sourced from the judgment. Mrs Howard has cover for two spinal injuries, The first was suffered in 2006, That injury was then aggravated by further injury in 2007. 
The appointment date was 5 November 2010 and Mrs Howard had been warned that failure to attend could result in entitlements being suspended - this on account previous difficulties in arranging such an assessment. 
The Howards kept the appointment but when Dr Kenny spoke to them Mr Howard raised questions about Dr Kenny's scope of practice and suitability to conduct the assessment and an issue arose concerning a physical examination such as led to the appointment not proceeding and, thereafter, to Care Advantage suspending Mrs Howards's entitlement until she complied. 
Three reasons advanced by the Howards for not co-operating in the assessment process were, first that Care Advantage had not provided Dr Kenny with all relevant information, secondly that the doctor was not suitably qualified to conduct the assessment, and thirdly that Mrs Howard was unhappy with a physical examination that might cause pain or injury. 
Prior to the appointment the Howards had also rehearsed their strongly held view that Mrs Howard should first be examined by her treating orthopaedic surgeon so that his advice might become part of any rehabilitation assessment. 
Judge Ongley identified the purpose of the assessment as to give the Corporation a clear direction for the pursuit of vocational or other treatment rehabilitation of Mrs Howard and he accepted as a proper purpose Care Advantage's pursuit of the assessment. 
Care Advantage, he held, had to consider treatment and rehabilitation with a view to resumption of employment or for social rehabilitation objectives. Thus it was reasonable to seek advice from an occupational specialist. 
The choice of such a specialist had become a feature of the case when the Howards had questioned the purpose of an assessment by an occupational specialist. They had sought assurances that the specialist was not engaged to advise on treatment issues or questions concerning the cause of Mrs Howards' disability, for she preferred to entrust those to an orthopaedic specialist. 
In an earlier 7 March 2012 judgment Judge Ongley had found that for Care Advantage to require Mrs Howard to attend for such an assessment was reasonable. The outcome of resistance to such a requirement had been a suspension of Mrs Howard's entitlements. But after a Code of Claimants Rights complaint the Corporation had accepted that the suspension was made without proper notice, so it was withdrawn. 
The referral letter that Care Advantage sent to Dr Kenny had been copied to Mrs Howard, The Judge noted that it requested advice under seven headings, the first three relating to the cause of injury and matters of symptomology, another three concerning treatment and rehabilitation and the last inviting any other comment the doctor might wish to offer. 
Given the facts as he recognised them to be, Judge Ongley had held that Care Advantage was entitled to pursue such lines of enquiry, he saying that: 
“While it is irritating and worrying for claimants to have their injury related symptoms continually questioned, it is still a legitimate enquiry in the context of a referral for a treatment or rehabilitation plan. In this case there was no evidence of unreasonably repetitive assessments …  ”
Judge Ongley noted that prior to the consultation Dr Kenny had provided Mrs Howard with a patient information form. This included advice such as that patients with longstanding pain conditions could find the examination mildly uncomfortable at the time of examination and that there could be a symptom increase in the hours following the examination: but simple pain medication would be available. 
The Judge noted that the form ended with the request to “advise the specialist if you do not wish to proceed with the consultation for any reason” and he acknowledged that when Mrs Howard was asked to sign a form of consent to the examination she expressed apprehension that she might be harmed in its course - she apparently calling to mind a previous discomforting experience. 
Prior to the examination Mr Howard had written to the Chief Executive of the New Zealand Medical Council expressing concern that Dr Kenny was, as he saw it, practising outside his proper scope. He had particularly questioned whether the doctor had any sufficient qualifications in orthopaedics, nerve damage or neuropathic pain. 
This was obviously one of the reasons why the Judge was satisfied that Mr Howard was certainly ready to question Dr Kenny's qualifications as in fact he also did at the appointment itself. An account of the events in question had later been conveyed to the case manager by the doctor. 
Dr Kenny's evidence included mention of the fact that at the time of the appointment he had pointed out to the Howards that his major area of specialist interest as an occupational physician in fact lay in the area of chronic musculoskeletal pain and that this was an area in which he was well qualified and up to date. 
The Judge noted that Dr Kenny had recorded that it was because of concerns expressed by Mr Howard about his competence, and Mr Howard's preference for his wife to be examined by an orthopaedic surgeon, that he had not proceeded with the examination and thus the assessment. 
Judge Ongley had held that Dr Kenny was in fact qualified to perform an assessment of the kind in question notwithstanding Mr Howard's submissions to the contrary. 
The Judge noted that at review Mr Howard had told the Reviewer that Dr Kenny had not accurately represented what had occurred at the consultation concerning matters including Mrs Howard's apprehension about pain arising from physical examination. 
The Judge noted that after considering the evidence available on appeal he accepted Dr Kenny's later sworn account of the appointment events which had touched upon the Howards' perception of the appropriateness of Dr Kenny as an examiner or assessor. The Judge went on to note that the doctor had said that: 
“Given Mr Howard's strongly held view on this issue and despite my discussion with he and his wife, they did not want to proceed with the consultation (so) I simply agreed with them that it was their decision and I respected that decision and I advised them I would contact the case manager and notify her as to what had transpired. ”
It is obvious from Judge Ongley's judgment that he appreciated that Mrs Howard's evidence at review had also indicated that her preference for orthopaedic assessment was a reason for not proceeding with the examination. 
In the course of his judgment Judge Ongley dealt with another of the matters put in issue, namely the sufficiency of the medical records put before Dr Kenny by Care Advantage. Here he acknowledged what Mr Howard had asserted in that respect but he was not persuaded that any absence of documents prejudiced the then proposed assessment. 
Here he noted the careful (on its face comprehensive, if I may say so) and sworn response of Dr Kenny concerning how he dealt with the questions of background information sufficiency. 
Judge Ongley's observations included that as well the recognisable as patent ability of Mr Howard himself to fill in any gaps by acquainting Dr Kenny with any documents he considered relevant but might be missing, Dr Kenny's regular practices in such cases would have led to him ensuring he had all that was required before actually reporting. 
Another question raised before Judge Ongley concerning the review hearing on 8 March 2010 where time ran out (on account, apparently, of a lengthy discussion of jurisdictional matters) so that the hearing was adjourned until 22 June 2010. 
The Judge recorded that Mr Howard had raised two points - first, that the Reviewer had described the review as being part heard but on the adjourned date it was dealt with by a different Reviewer and secondly (and related to the first point) whether there was jurisdiction under the Act for the review to be heard afresh on 22 June. He also noted an assertion that the events in question had led to a deemed decision under s 146. 
Dealing with the primary issue in this part of the case, the Judge had noted that the Act was silent on the question of adjourned hearings simply requiring that a date for hearing be set within three months which (as is the case law including that from the High Court) had been interpreted as meaning that notification of such a date had to be made within three months although the hearing might in fact eventuate later. 
So far as the suggestion of a deemed decision was concerned he pointed out that under s 146(2) such occurs at a specific date following a specific failure to set a date. There was no provision for a deemed decision in other circumstances such as when an adjournment was directed with both parties present. 
Fundamentally the important thing was that the parties had in the end had an opportunity properly and fully to be heard, that particularly on the second occasion. 
In any event, as the Judge also recognised, the appeal before him was by way of a rehearing in the widest sense so that the Court was required to reach its own conclusions on the materials put before it 
Under the heading “discussion” Judge Ongley then wrote this: 
1 have sympathy with Mrs Howard's preference to get an assessment of her injuries and symptoms from her treating orthopaedic surgeon Mr Grant Cowley. She was concerned that an occupational assessment without input from Mr Cowley could result in advice to Care Advantage minimising the link between her covered injury and ongoing symptoms, or minimising the functional effect of her symptoms. Care Advantage could then act on that kind of advice without inviting any further comment from her treating specialist. She was critical of the case manager's obduracy in insisting on an occupational assessment in the face of requests by the appellant and her GP to get advice from Mr Cowley. 
The requests were made almost entirely by Mr Howard on behalf of his wife. Mr Howard had established a reputation for persistently questioning decisions by the Corporation and by Care Advantage. That could have brought about an element of resistance on the part of the case manager, but it should be noted that the file reflects courteous communication between Mr Howard and the case manager. There is no basis to find that the case manager's continual insistence on an occupational assessment was a decision made on improper grounds, as for example an attitude that any request by Mr Howard should be resisted without considering its merit. 
I cannot see that a general principle should be adopted requiring injury related specialist's advice before an occupational assessment. In the particular case there was a legitimate purpose in obtaining an assessment of the appellant's functional ability from a practitioner who could look at a range of practical options for social or vocational rehabilitation. I accept Mr McBride's submission that there was an occupational rehabilitation focus, and an occupational physician was an appropriate assessor. Dr Kenny was suitably qualified for that purpose, as was Dr Monigatti before him. While the appellant's request for a preliminary orthopaedic assessment was not unreasonable, Care Advantage was not obliged to take that course and it was not more compelling by reason of the appellant's insistence on it. While it may be difficult to understand why the case manager was so determined in resisting that course of action, the circumstances do not justify a judicial determination that she was bound to accede to the appellant's request. In other words, the case manager's direction of enquiry was reasonable and it did not become unreasonable because the appellant continued to insist on a different course. ”
Hence this in terms of the actual decision: 
I reach the conclusion that the respondent's decision was correct in the circumstances. It was reasonable to require the appellant to attend for assessment by an occupational physician. The grounds raised by the appellant do not make out a case for a reasonable refusal to engage in the assessment, the evidence does not show that the assessment was terminated by Dr Kenny independently of a refusal by the appellant, I am satisfied that the appellant unreasonably refused to engage in the assessment and further that the respondent's decision to suspend entitlements was justified and reasonable. … For those reasons, the appeal is dismissed. ”
Questions posed for Ms Howard 
The application for leave to appeal incorporated what were identified, in the submission for Mrs Howard, as 15 questions of law worthy of consideration by the High Court. 
These 15 questions comprise a mix of references to matters it was suggested ought to have been, but supposedly were not, taken into account by the Court; non-legal points such as what notice Mrs Howard was entitled to take of her GP's advice; references to overarching provisions of the Act such as s 3 and s 54; reference to estoppel by representation the pertinence of which in the context of a statutory regime is difficult to fathom; whether a note on the doctor's form “please advise the specialist if you do not wish to proceed with the consultation for any reason” could make it reasonable (in the particular statutory context) to decline to proceed; whether the Judge was entitled to give more weight to one set of witnesses as opposed to another; putting in question the Judge's fact finding in respect of what happened at the doctor's rooms; matters relating to the review process, and so on. 
In the submissions subsequently proffered by Mr Howard on behalf of his wife there was this: 
The appellant contends that His Honour has overlooked, or chose to disregard, circumstances and evidence in the appellant's bundle of documents. That His Honour has overlooked evidence and law that could have been balanced and construed in favour of the appellant, and His Honour failed to provide analysis or give reasons why matters raised in submissions and factual and pertinent evidence in the appellant's bundle were not objectively taken into account or given reasons why that evidence was disregarded and for doing so. ”
It is of course a truism that if a Court has overlooked any relevant matter or taken account of some matter which is irrelevant then a question or questions of law may arise, but that a Judge sitting on appeal might have reached a different conclusion does not suffice (in a question of law context) to justify the conclusion that the decision was inconsistent with the evidence, or contradictory of it, or otherwise insupportable1
| X |Footnote: 1
Bryson v Three Foot Six Limited [2005] 3 NZLR 721Has Litigation History which is not known to be negative[Blue]  
There followed an argument developed in terms that there were elements of oversight or disregard of evidence by the Judge that were singularly significant. This argument was interspersed with references to Mrs Howard's individual rehabilitation plan (IRP) in terms, it seems, that it gave rise to a legitimate expectation that nought else would be sought by Care Advantage. It seemed at least to be suggested that the IRP should have been provided to the doctor who was to examine, a contention that, with respect, I cannot follow in terms of materiality or utility. 
The contention resurfaced in the context of the submissions in this respect that in some way the views of Mrs Howard's GP or GPs should hold sway over any other, particularly regarding the relevance of orthopaedic consultation or intervention. Indeed this appears to be a matter central to the Howards' discontent. 
There is then a return to the theme that was obviously very much a feature of the argument before Judge Ongley, namely whether it was to Mrs Howard's orthopaedic surgeon Mr Cowley that a first reference for examination or assessment should have been made; in other words that an appointment with him should have been some kind of condition precedent to one with the occupational medicine specialist selected by Care Advantage, 
But that was an issue plainly covered by the Judge (and one that had been raised in a previous case too) and in this respect I refer particularly to paragraph [13] of the judgment currently sought to be put in question. 
The submissions included the expression of a concern that - without a wider range of depth of medical (particularly orthopaedic) opinion - Dr Kenny might have somehow caused “further damage” to Mrs Howard had she assented to the obviously requisite for a full assessment by him physical examination. 
But there is no sign that there was any evidence to support such an extreme assertion so that at the very best it was speculative, 
The question of whether otherwise Dr Kenny had enough by way of necessary or sufficient for the purpose medical information before him on the appointment day was also rehearsed but that was a topic particularly dealt with by the Judge in a factual way - see [26]-[28] of his judgment. 
The submissions shortly and latterly turned to the question of the review process (the effect of the “adjournment”) upon which the Judge had ultimately made the point I have noted (see [33] above) about the appeal hearing being a fresh consideration. He also made reference to the fact that there had in any event been a full and complete hearing on one review; in other words basic principles of natural justice were observed - see his judgment at [29]-[33]. 
Response for the Corporation (Care Advantage) 
The Corporation's response opened with the observation that Judge Ongley at paragraph [1] of his judgment had identified the issue before the Court as being whether Mrs Howard unreasonably failed to permit examination and assessment by an occupational physician, the submission being that self evidently this was a question of fact. 
The Corporation noted that at paragraph [34] the Judge had rehearsed the questions that had been for the decision of the Reviewer (and then of course fell for determination by the Court) as being: 
Was the requirement to attend an assessment by an occupational physical reasonable in the circumstances? 
Did Mrs Howard unreasonably fail to participate in the assessment? 
Was the use of s 117(3) appropriate? 
Counsel submitted that the satisfaction or otherwise of a statutory test was a classic question of fact2
| X |Footnote: 2
Bryson (supra) 
and that the present application was a plain example of an appellant seeking this way and that to advance a different construction of and/or express subjective disagreement with conclusions as to facts - but that could not convert matters into ones of law. 
This has been a case of a contest between the Corporation's agent (Care Advantage) and Mrs Howard as to the appropriate course. She had contended through her husband that her actions in declining to cooperate were reasonable but the Judge, after scrutinising what had been put forward, had rejected that claim. 
I mention here that far from it being the apparent case (as the Howards would appear to seek to have it) that the judgment was somehow lopsided or selective, it is apparent that the Judge's approach was in fact one seeing both sides of the case and dealing with them in a balanced way — see [38]-[40] of the judgment. 
It is obvious from the materials before me that what the Judge had before him was, in relative terms, voluminous material. There could be no reasonable expectation that in delivering his judgment he would touch upon each and every matter that was or might have been raised. Counsel for the Corporation was right in proposing that there is no legal requirement for a Court to traverse seriatum every item of evidence placed before it nor either each and every submission. 
So far as complaints about the review process were concerned the Corporation submitted (in terms indisputable I would respectfully suggest) that the actual merits had been fully ventilated at the appeal hearing whatever any shortcoming (and I can discern none that is arguable) in the review process, 
Mr Howard obviously takes a keen interest in ACC matters and so will doubtless have no difficulty in accessing judgments in this jurisdiction. Thus, seeking to be constructive, I commend to him a reading of Accident Compensation Corporation v Christopher Joseph O'Neill3
| X |Footnote: 3
[2012] NZCA 219 
Rejoinder of Mr Howard 
Mr Howard lodged submissions in response to those of counsel for the Corporation. These now contained numerous case references but I have found nothing in them as goes usefully to support the application before me. 
To the extent that the contention is renewed that - to put it in plain language - the Court was selective of the evidence upon which it relied, it appears clear to me that the underlying argument was one simply and only based on the premise that the Judge ought to have viewed the facts differently from the way in which the Howards do. 
To be as clear as I can - given the difficulty of dealing with diffuse arguments - it has not been shown to me that, in reasonably and justifiably arguable terms, Judge Ongley's judgment was one: 
Made despite the absence of evidence to support it; 
Inconsistent with or contradictory of the evidence when that is viewed as a whole; or 
One of which it could be said that the true and only reasonable conclusion on the evidence contradicts it4
| X |Footnote: 4
Edwards v Bairstow [1995] 3 All ER 48, 57 
In the result I am unable to discern in this application any question or questions of law that are material to the case in hand and/or could justify the grant of leave on a wider importance basis. 
The application is therefore dismissed, 

Bryson v Three Foot Six Limited [2005] 3 NZLR 721Has Litigation History which is not known to be negative[Blue]  
Bryson (supra) 
[2012] NZCA 219 
Edwards v Bairstow [1995] 3 All ER 48, 57 

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