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Accident Compensation Cases

Peck v Accident Compensation Corporation (DC, 09/05/14)

Judgment Text

Judge L G Powell
This is an application for leave to appeal a judgment of Judge Ongley delivered on 23 August 2013.1
| X |Footnote: 1
[2013] NZACC 272 
Judgment appealed against 
The appeal before Judge Ongley involved a challenge to the refusal of the respondent to pay an independence allowance to the applicant. The respondent's decision was based on an assessment carried out by Dr Schousboe in October 2011 which determined that the applicant's impairment on a range of matters, including hepatitis C, did not reach the minimum threshold for the payment of an independence allowance. 
In his judgment Judge Ongley noted the applicant's infection with hepatitis C was a medical treatment injury, the application for the independence allowance (which as noted involved the consideration of four covered injuries), and the assessment by Dr Schousboe. Judge Ongley noted the main challenge to the assessment was that the applicant's hepatitis C “warranted a more significant assessment” but commented: 
“The respondent says that the reason for the zero assessment is that the infection is currently stable and does not interfere with functional activities. That appears to be correct. There is no indication that the [applicant's] ability to attend his daily activities, or to work, is directly affected by his hepatitis C infection. Clearly the infection causes him more concern than his other injuries, but that is not a factor in assessing whole person impairment for an independence allowance. ”
Ultimately in relation to the assessment Judge Ongley adopted the reviewer's analysis of the adequacy of the assessment in the following terms: 
“ … when I consider Dr Schousboe's impairment assessment, I am satisfied that no flaw has been shown, or that the assessor's conclusions were in any way flawed or incorrect, which would allow that report to be set aside. ”
Finally Judge Ongley took time in his judgment to address a number of matters that were clearly of concern to the applicant including: 
The basis upon which the assessment had been undertaken by Dr Schousboe applying the AMA Guides to the Evaluation Of Permanent Impairment (4th edition) (“AMA guides”); 
The wide range of medical issues suffered by the applicant, of which not all were the responsibility of the respondent; 
Confirming that the applicant was covered for his hepatitis C as a treatment injury; 
Confirming that a number of matters did not affect the outcome of the appeal including any issue with regard to confusion in the administrative claim numbers used by the respondent, the applicant's earlier application for an independence allowance, or the fact that the appeal was brought out of time. 
Discussion and Analysis 
In his written submissions filed in support of the application the applicant has identified five “points of law”
The respondent opposes the application for leave to appeal on the grounds that the proposed appeal and, in particular, the specific points identified by the applicant do not raise any question of law. 
Having considered the points raised by the applicant with reference to the judgment I am satisfied that no question of law has been identified let alone any one that is “capable of bona fide and serious argument”.2
| X |Footnote: 2
Impact Manufacturing v Accident Compensation Corporation (unreported, High Court, Wellington, AP 266/00, 6 July 2001 
Addressing the points raised by the applicant in turn: 
The applicant has criticised Judge Ongley's comment that “the applicant took the refusal of an independence allowance as a rejection of his claim for compensation for personal injury”. The applicant states “I was not offered an allowance otherwise I wouldn't be fighting this case”. With respect to the applicant the applicant has clearly misread or misunderstood Judge Ongley's comment as it is clear that Judge Ongley has indeed recognised that the applicant was not offered an independence allowance, but at the same time was pointing out to the applicant that the treatment injury itself remains covered. 
The second point identified by the applicant was that the AMA guides applied by Dr Schousboe and referred to by Judge Ongley “is not a law of New Zealand”. That is clearly not correct. The AMA guides are in fact the assessment tool prescribed for use in assessing a person's eligibility for an independence allowance pursuant to Rule 4 of the Injury Prevention, Rehabilitation, and Compensation (Lump Sum and Independence Allowance) Regulations 2002. 
The third point raised by the applicant is that “if treatment injury why no compensation?”. As the respondent notes correctly there is a clear distinction, observed by Judge Ongley throughout his judgment that cover can continue even if the applicant was not entitled to a lump sum payment or independence allowance. I note in the applicant's reply submissions he has referred to ongoing health issues arising from his hepatitis C, and I observe those issues and any aggravation to those issues are clearly still covered notwithstanding the applicant was not entitled to receive an independence allowance. 
The fourth point raised by the applicant is “if ACC stuck to the original claim number it might be a different outcome from using old claim numbers”. No specific problem has been identified. As noted above this matter was dealt with specifically by Judge Ongley in his judgment where he indicated that any issues arising from confusion in claim numbers had been resolved and that in any event it did not “affect the outcome of the independence allowance assessment”
Finally the applicant referred to clause 2(2) of Schedule 1 to the Accident Compensation Act 2001 and implies it was not taken into account by Judge Ongley in his judgment. Unfortunately reference to this clause does not assist the applicant as the relevant part of Schedule 1 to the Act simply provides guidance to the respondent with regard to its liability to pay for costs of treatment and has no relevance whatsoever to the issue before Judge Ongley in respect of an independence allowance assessment. 
Having addressed the matters raised by the applicant there is clearly no possible basis for leave to appeal to be granted. 
The application is dismissed. 

[2013] NZACC 272 
Impact Manufacturing v Accident Compensation Corporation (unreported, High Court, Wellington, AP 266/00, 6 July 2001 

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