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Accident Compensation Cases

Kuru v Accident Compensation Corporation (DC, 19/03/13)

Judgment Text

Roderick Joyce QC Judge
This was an application for leave to appeal to the High Court on a point of law asserted to arise from the 12 September 2012 judgment of Judge Beattie. 
That judgment was concerned with the question of whether on 25 November 2010 the Corporation had been right when it declined Mr Kuru lump sum compensation on the basis that his impairment was less than the requisite 10% minimum. 
On 18 September 2012 Mr Kuru (through counsel Andrew Beck) gave notice of an application for leave to appeal Judge Beattie's decision (which had been to dismiss the appeal that had been before him) to the High Court. Although the distinctly informal notice given did not say so, obviously — because no other course was open — the intimation was of an application for leave to appeal on a question of law. 
In subsequent written submissions Mr Beck made plain that was the case, proposing that three questions arose: 
What was the nature of the hearing conducted by the Court and what was meant by a “de novo hearing”
Whether it was correct in Jaw to restrict the enquiry to whether the decision made by the Corporation was correct at the time it was made. 
Whether the Court had interpreted its role in correctly and in particular whether it had failed to follow the approach laid down in Martin1
| X |Footnote: 1
Martin v ACC [2009] 3 NZLR 701Has Litigation History which is not known to be negative[Blue]  
Judge Beattie's judgment 
After reference to the issue at hand Judge Beattie noted that: 
Dr Fenwicke had assessed Mr Kuru on 10 November 2010, reporting on the 15th of that month in terms including this advice; 
“Impairment was assessed using the lumbosacral DRE categories on pages 102 and 103 of the 4th edition of the AMA Guides to Impairment. Mr Kuru has a history of a prolapsed disc following an accident at work. He has had surgery but still has pain with activity. Mr Kuru is in category II in that he has a history of injury, but there is no loss of structural integrity and no objective sign of radiculopathy. 
Final Whole Person Impairment — Lumbosacral prolapse: 5%. ”
Mr Oakley, (an orthopaedic surgeon who had operated on Mr Kuru in May 2009) had reported to Mr Kuru's GP in May 2011 that Mr Kuru had come back for review, In reporting the result the surgeon had added: 
“I think he has been assessed for an ACC lump sum as having 5% disability. I would think that his Lumbar spine was causing him more than 5% overall disability, ”
On 1 September 2011 (nine months or so after the Corporation's decision) Dr Kanji, a musculoskeletal pain specialist, had assessed Mr Kuru at the request of his counsel, then reporting that: 
“Using Table 72, page 110, category III gives 10% whole person impairment. There is evidence of radiculopathy including reduction of the right knee reflex which is supplied by the L3 and L4 nerve roots which was [sic] compressed by the disc prolapse. The history and findings arc consistent with the mechanism of the injury, ”
A comment from Dr Hancock (who had peer reviewed Dr Fenwicke's report, on Dr Kanji's opinion) included that: 
“Dr Kanji's assessment of a category III lumbosacral impairment was based on neurological evidence of a radiculopathy — namely a diminished right knee reflex. 
When Dr Fenwicke assessed Mr Kuru on 10/11/2010 she specifically reported that ‘knee and ankle reflexes were present in normal’
It is plausible, however, that in the 10 months between the 2 assessments Mr Kuru's condition had changed and that he had developed a radiculopathy that was hitherto not present. ”
By reference to the AMA guides in question, Judge Beattie had noted (in reference to the assessment of lumbosacral spine impairment) that those in the minor category, i.e., without radiculopathy or loss of motion segment integrity, warranted but a 5% WPI whereas those where there was evidence of radiculopathy warranted a WPI of 10%. 
The Judge had then rehearsed the submissions of Mr Beck that in light of Dr Kanji's later assessment it should not be the case that Dr Fenwicke's assessment carried the day. 
His Honour [hen continued: 
Counsel pointed to the fact that there was expert evidence pointing to the conclusion that the appellant had an impairment of 10%, and he submitted that that cannot be ignored, He referred to the High Court decision of Martin where the High Court stated that the District Court Judge's function on a rehearing was to take all of the medical evidence into account, 
Mr Barnett, counsel for the respondent, submitted that the whole person impairment must be the impairment which was identified as existing at the time a decision was made, and that a level of impairment that is identified from a significantly later date, is not relevant to the correctness of the decision which was made on the basis of the first impairment, although that later impairment may give rise to consideration of a reassessment for an entitlement. 
Counsel referred to the fact that the difference between the two assessments was the matter of whether or not there was radiculopathy and where Dr Fenwicke identified that it was not present at the time of her assessment, although it was present 10 months later when the appellant was assessed by Dr Kanji, Counsel submitted that there was no evidence to suggest that Dr Fenwicke's assessment was wrong at the time it was made, and he referred to the earlier comment from Mr Welch, that when he examined the appellant in October 2009 no nerve root tension could be identified. ”
In explaining why, as was the case, the appeal was dismissed Judge Beattie recorded that: 
Martin had made clear that this Court should have regard to all the evidence that might be relevant to whether the appellant had obtained vocational independence2
| X |Footnote: 2
That was the point of focus in Martin but, obviously, Judge Beattie recognised that the fundamentals of the Martin approach should also apply in WPI context. 
with the gloss that “it was implicit in that decision that the evidence that is to be considered is all evidence that relates to the medical situation that existed as of the date of the decision in issue”
There was no medical evidence to bring Dr Fenwicke's assessment at that time into question, the plain fact being that no further assessment of Mr Kuru's medical condition was undertaken until 10 months later by Dr Kanji. 
Thus Dr Fenwicke's assessment had to be accepted as correct at the time of same and, more particularly, the date of the decision brought in question. 
It was quite possible on the evidence that, subsequently, Mr Kuru had begun to suffer radiculopathy. But the issue before the Court related to his state at the time of the determination brought in question, not to events subsequent which might have led to a deterioration such as would justify a higher (and thus significant for compensation purposes) percentage assessment; and 
In terms of cl 61 of Schedule 1 of the Act (which deals with reassessment of entitlements lump sum compensation) and with 12 months and more having expired from the first assessment - even when the case was before Judge Beattie - it had been open to Mr Kuru to make application for reassessment; thus 
The determination of the Corporation had been correct in fact and law. 
Case for Mr Kuru 
Counsel for Mr Kuru's subsequent submissions dwelt somewhat on the indisputable, surely, proposition that, like a reviewer, the Court on appeal was required to approach the question de novo, or — as it might more aptly3
| X |Footnote: 3
So as not to confuse what is a general appeal with what is strictly to be described as a de novo appeal. 
, I suggest, be put — with completely fresh eyes. 
Counsel went on to contend (in, with respect, quantum leap fashion) that this meant that the reviewer had not been required to determine whether the decision was correct at the time it was made, but instead as at review date. 
Counsel adverted to Martin where, as is well known, Ronald Young J had said at [33] that: 
“The District Court Judge's function on re-hearing, when dealing with the medical assessment, is to take all of the evidence, including that from the medical assessor and any other medical evidence into account in deciding whether or not the appellant is vocationally independent, In doing so, it will be inappropriate to give the medical assessor's opinion, simply by virtue of the fact that is an opinion of the medical assessor, any pre-eminent position, In assessing the medical evidence, the Reviewer and the District Court Judge's job will be to apply a traditional approach to an analysis of the competing expert evidence. For example, how do the medical practitioner's particular qualifications and experience relate to the claimant's disability? What is the quality of the medical report, including the thoroughness of the detail, There will be a range of other factors that will be relevant in individual cases, ”
The initial submissions of counsel for Mr Kuru did not appear then to descend with any clarity into an elucidation of how, if at all, Judge Beattie might in fact have dealt with this appeal contrary to the Martin principles. 
Corporation response 
The Corporation's response was that, read as a whole, it was plain that Judge Beattie fully appreciated the shape and form of the appeal hearing task before him. He had recognised that Dr Kanji had come to a different assessment of Mr Kuru. But that was in the state he found him to be many months after the assessment that had led to the decision of the Corporation. In terms of the given statutory process the approach had to be — the enquiry had to be focused on — what in fact the level of disability was at the time, 
Mr Barnett rehearsed the acknowledgement by Judge Beattie that if, after initial assessment, a claimant's condition deteriorated there was the statutory avenue for reconsideration and submitted that that of itself clearly pointed against a court on an appeal of this kind qualifying as a first instance place of recourse for reassessment — there was a specific, carefully crafted by the statute, process to be followed. 
The response for Mr Kuru 
This came down to (a) a reassertion of the proposition that Judge Beattie had misconstrued and thus misapplied Martin (which, if so, would most certainly give rise to a question of law); and (b) to the reiteration of the contention that there was another and wider question of law mattering not just for this but for other cases, namely that of what evidence might be taken into account by a reviewer on a de novo4
| X |Footnote: 4
Given there is a separate category of appeals that are labelled de novo, the use of this expression has an unfortunate tendency to distract. 
hearing and the Court on appeal from review, 
Simply on that last point, and with all respect to Mr Beck, if that is a question of law (as academically it might be described) it is cast so broadly as to be impossible of useful answer by any court — circumstances alter cases and that precludes utility in generic responses. 
Again with all respect to Mr Beck, it seems to me that his argument quite trusses the significant point in this kind of case that, as Judge Beattie identified, Dr Kanji's views did not bear upon the apparent state of Mr Kuru at the time of the assessment actually in question — instead they referred to a finding, accepted by Dr Fenwicke's peer reviewer as an available possibility, that things had changed for Mr Kuru in the meantime. 
I trust in all this that I have not been presumptuous, for I appreciate that on an application of this kind it is not certainly this Court's task to pre-empt the merits if there are such. 
But here, in my view, it is obvious that Mr Kuru's case does not, even in faintly arguable terms, raise any legal questions with which the High Court should be troubled. 
The application is dismissed, the Court simply adding that Mr Kuru may now wish to apply for a reassessment based on medical evidence concerning his subsequent state of health. 

Martin v ACC [2009] 3 NZLR 701Has Litigation History which is not known to be negative[Blue]  
That was the point of focus in Martin but, obviously, Judge Beattie recognised that the fundamentals of the Martin approach should also apply in WPI context. 
So as not to confuse what is a general appeal with what is strictly to be described as a de novo appeal. 
Given there is a separate category of appeals that are labelled de novo, the use of this expression has an unfortunate tendency to distract. 

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