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Accident Compensation Cases

Khan v Accident Compensation Corporation (DC, 02/08/13)

Judgment Text

Roderick Joyce QC Judge
This was an application for leave to appeal to the High Court on a question of law the 14 September 2012 judgment of Judge Beattie. 
That judgment arose from three review applications being: 
Review number 153831 where Mr Khan sought relief by way of reference for psychiatric assessment. 
Review number 188050 where Mr Kahn contested the Corporation's decision suspending ongoing entitlements on the basis that his ongoing problems were not injury related. 
Review number 188051 where he contested a decision that he was not entitled to lump sum compensation. 
Judge Beattie's judgment 
The following is apparent, factually speaking, from the judgment: 
On 10 April 2007 Mr Khan was the victim of an assault which resulted in contusions of the cheek, scalp and wrist/hand and he was granted cover for what were described as soft tissue injuries. 
In March 2009 he was examined by a clinical psychologist who advised that he should be referred for psychiatric assessment. 
In April 2009 he was seen by a psychiatrist who was of the view that Mr Khan was suffering from a psychotic order of longer standing than the assault event. 
He then sought a ruling that he be seen by another psychiatrist and when, one takes it, the Corporation did not respond he lodged a review application. 
A year or so after the psychiatric assessment that had been arranged by the Corporation had been completed, Mr Khan applied for an independence allowance/lump sum. 
A lump sum assessment was carried out by a duly appointed medical assessor. The outcome was an assessment of 5% WPI and only assessments of 10% or more qualify for lump sum provision. 
An 18 June 2010 determination of the Corporation held that Mr Khan's ongoing medical condition had no causal nexus with the events of 10 April 2007 so entitlements were suspended. 
As to the Court's findings: 
The Judge noted the evidence was quite clear that Mr Khan's request for another psychiatric assessment had not been the subject of any kind of determination or decision, thus there was no jurisdictional foundation for a review. 
As to the WPI assessment, the Judge found that to have been performed by a duly appointed impairment assessor who had due regard to the relevant provisions of the AMA guides that govern and neither on review or appeal had Mr Khan produced any, contrary to the 5% assessment, qualified evidence. 
As to the 18 June 2010 decision, the Judge noted that the covered injuries were soft tissue only. In any event, and in the main, the determination has been reached on the basis of the psychiatric opinion. 
The Judge found as a matter of fact that there had not, at the time of that decision, been any persisting sequelae of the original soft tissue injuries. They were in the past and nothing at all to the contrary was before the Court from any duly qualified source. 
The Registry had accepted as sufficient to raise an application for leave to appeal on a question of law a 3 October 2012 email from Mr Khan in which he said (sending his message from Fiji) that: 
“I received your email today because I am living in a village and email is in the city. 
I wish to appeal to High Court but haven't got money to arrange a lawyer can I appeal myself to High Court I request to know, District Court was wrong I don't need to see psychiatrist doctor, I need to see specialist doctors like Dr Paul Quin from New Zealand who can inject medicine there is no doctors trained in Fiji nerve injection, it wasn't a soft tissue injury, that is totally lie not true, my head was badly burst on concrete wall and I had 20-30 pounds solid punches on my head very difficult lay head on pillow find out from injury Dr Fenwick Medical Centre Dr Satish Chandra and Dr Paul Quin. ”
Subsequently Mr Khan sent in an 18 March 2013 report from a consultant psychiatrist in Suva. He said that, in light of his understanding and enquiries, Mr Khan suffered from, first of all, a psychotic order which he identified as Schizophrenia, paranoid type, chronic, episodic with full remission between episodes and, secondly, an anxiety order unspecified. And he also wrote that “symptoms suggest he still experiences intrusive memories of the trauma of 2007”
He then recorded that: 
“From the available history, Mohammed Jalil Khan is severely impaired in his occupational functioning as a panel beater and painter. It is probable that his impairment may be due to exacerbation of a psychotic illness. It is probable that his impairment may be due also to his state of anxiety. ”
As will be obvious, particularly from his last remarks, this report, apart from being one furnished long after the appeal was heard, indicates that the psychiatrist reporting was unable confidently to recognise any of Mr Khan's symptomology as discernibly to be related to the assault. 
Case for Mr Khan 
It is obvious from the 3 May 2013 written submissions lodged by Mr Khan that he sees himself as pursuing a right of general appeal, for he begins by saying that the issue is: 
“ … whether the learned trial Judge erred in law and in fact in failing to consider the fact that the appellant should be given liberty to obtain medical reports in Fiji in order to objectively decide the factual facts prior to sustaining any injury and facts that he sustained after the injury in New Zealand. The facts prior to injury and facts after the injury objectively will place any Court of law to objectively decide this case which the lower Tribunal ignored hence its decision must be dismissed. ”
The submission then continues in terms including that: 
“ … the fact that the Tribunal during the reviews relied on New Zealand doctors, and concluded that the injury sustained has nothing to do with the mental disorder, the learned Judges failed to ask themselves, did we need to obtain the medical reports from Fiji as background information in order to see the nexus or link between the cause and effect. 
… in absence of this alone, it is flaw to conclude that the injury does not link with his mental disorder since the appellant did not suffer this while he was in Fiji he only suffered this after the assault inflicted on him in New Zealand. 
… the appellant submits to this Honourable Court that the fact that no medical reports in Fiji been sought by the Tribunal lower Court is purely an error of facts and laws which any reasonable Tribunal must sought when reviewing the case …  ”
Corporation's response 
Counsel for the Corporation identified three issues as having been before the District Court, namely: 
Whether an application for review (whereby the appellant sought to be referred to another psychiatrist) related to a reviewable decision; 
The correctness of the respondent's decision of 18 June 2010 suspending the appellant's entitlements on the basis that his ongoing problems were not injury related; and 
The correctness of the Corporation's decision of 22 June 2010 determining the appellant was not entitled to lump sum compensation as his whole person impairment was less than the statutory minimum of 10%. 
It was the submission for the Corporation that: 
“The Court identified the material facts and evidence. The Court determined that the application for review, requesting a further psychiatric assessment, was not reviewable. Further, the appeal from the lump sum compensation determination had no merit as no cogent evidence had been produced by the appellant to undermine the assessment undertaken for the respondent. ”
Counsel noted that the Judge had recorded that: 
“The evidence is that the covered injuries were only soft tissue injuries, and it is the case that the respondent's decision was made, in the main, in the basis of Dr Galpin's specialist medical opinion, wherein he advised that the appellant's ongoing problems were of a psychological nature, and there was no evidence that the appellant was suffering any ongoing physical conditions associated with his covered injury. That is not to say that he was not experiencing ongoing physical conditions, but it is the case that these were not associated with the covered injuries, and in the main had been medical conditions which had existed prior to the injury event of April 2007. ”
Counsel for the Corporation then submitted that: 
It was clearly the case with each of the two actual decisions of the Corporation that Mr Khan now sought to take issue with the Court's analysis of the facts and evidence and the conclusions then ensuing, each of which (save the first) had been determined factually by reference to the medical evidence. 
The report of Dr Galpin, psychiatrist, had offered the Court ample evidence to support its factual findings. 
The Court had no obligation to take any steps to obtain evidence for Mr Khan who, counsel advised and the record confirms, had originally been represented by counsel when pursuing his appeals. 
Turning then to the report from the Fijian psychiatrist, the point basically made was that it came too late and, anyway, was at best equivocal about any relevance of the 2007 event. In fact it was consistent with Dr Galpin's opinion that the psychotic problem was of longstanding. The Fijian psychiatrist had confirmed that Mr Khan had been treated for psychosis since 1984. 
It can first briefly be said that the appeal in respect of review 15383 was never going to go anywhere for there was no decision of the Corporation capable of founding a review. 
As to the appeals relating to the other two reviews, and the current applications in respect of those, it is clear that, while a reference to “law” is made, Mr Khan's dispute is with the factual findings of the Judge. And, self evidently, those were made against a background where Mr Khan offered no pertinent expert evidence relevant to the issues then at hand. 
I add that even had he had a right of general appeal (which he does not) Mr Khan would surely have struggled to put before the Court the lately obtained Fijian psychiatric report. He would have to have promoted a reasonable basis for arguing that it was truly “new” and cogent evidence. And, speaking simply of cogency, that report surely offered none such. 
More fundamentally, and to rehearse what has already been observed, what Mr Khan now seeks to do is to engage the Corporation in a further contest over matters of fact, none of any law, and there is no such avenue or appeal to the High Court. 
The application is dismissed. 

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