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Accident Compensation Cases

Smith v Accident Compensation Corporation (DC, 30/10/14)

Judgment Text

Judge L G Powell
The substantive issue in this appeal concerns a decision of the Corporation dated 12 February 2010 which revoked the appellant Trevor Smith's cover for pain injury in his lower spine following an accident on 24 November 2004. 
At review the reviewer, Mrs J Wilson, concluded in a decision dated 3 September 2010 that the Corporation's decision was correct as the medical evidence showed that Mr Smith had not suffered a new injury on 24 November 2004. 
Mr Smith then filed the present appeal and it was heard before Judge Barber on 1 July 2011. In an interim judgment dated 8 December 2011 His Honour discussed the matters raised before him in the following terms: 
The appellant has filed extensive submissions. He contends that the Reviewer did not deal with appropriate issues. His point must be that he should still be receiving entitlements from his 1981 injury. 
He seemed to accuse ACC of endeavouring to mislead. 
The stance of the appellant is not easy to understand. Reference was made to the preceding Review decision of 9 March 2010 in which it had been recorded that: ‘The parties agree that Mr Smith had not suffered any new injury in his accident on 24 November 2004. Accordingly, ACC agreed to issue a decision to Mr Smith revoking cover for that injury.’It is clear that it was agreed that was the basis upon which ACC was to proceed and it has. 
The appellant's submissions seem directed towards issues of entitlements. In his third page of submissions he states: ‘The law is clear that the entitlements and cover continue to flow as long as the ongoing symptoms continue to be in some way attributable to the accident for which cover has been granted. The level of entitlements depend on the level of incapacity or the level of loss of earnings … ’ (appellant's emphasis) 
This appeal is not about any issue of continuing entitlements. It might have been possible to frame as a question whether any symptoms from which the appellant is suffering were a consequence of a personal injury for which he had cover. However, such issues are clearly not before this Court, nor were they before the Reviewer. 
The Reviewer considered, and the evidence discloses, that all that was evident and ever contended in November 2004 was that the appellant was suffering lower back pain. The evidence supported the view that this was a result of the aggravation of the appellant's pre-existing condition. 
The appellant's submissions seek to have this Court review extensive materials relating to earlier decisions, reviews, and appeals, all of which have been resolved in a way which does not support the appellant's present contentions. 
The puzzling aspect to this case is that the appellant has cover for his 1981 injury and has been able to have the cover of 3 December 2004 revoked, as he sought, with the consequence that some injuries have been regarded as aggravations of his 1981 injury and not subsequent injuries. No issue of entitlement arises in the appeal before me. It seems that, fairly recently, ACC has ceased entitlements to the appellant in relation to his 1981 injury but he is separately resisting that decision on the basis that the pain from his 1981 accident injury still significantly affects his activities. However, the issue before me has been conceded to the appellant by ACC, namely, that he did not suffer any new physical injury on 24 November 2004. ACC revoked its decision to the contrary on 12 February 2010. 
The stance of the appellant is so puzzling that I issue this decision on an interim basis and reserve leave to apply. ”
[Emphasis added] 
Since the interim decision was issued, neither party has made any application in terms of the leave reserved and the appeal remains therefore extent. 
The appeal came before me at a directions conference in Dunedin on 16 September 2014. After discussing the effect of the interim decision with the parties I noted by way of minute: 
Following discussion it appears that the reason that Judge Barber issued an interim decision was to give the appellant, Mr Smith, the opportunity to identify whether there were any live issues still remaining other than the ones that Judge Barber had covered in his interim judgment. 
Mr Smith indicated that there may well be an issue outstanding and that he already has the necessary documents to illuminate that point ready for filing with the Court. 
In the circumstances I direct that Mr Smith is to file submissions identifying any outstanding issues that were not addressed in Judge Barber's decision, together with any supporting documents, by 3 October 2014. Once those documents have been filed the Corporation will have until 17 October 2014 to respond and I will then at that point make a determination as to whether there are indeed any outstanding issues that will require a further hearing to resolve. ”
Both parties filed submissions as directed and as indicated in my minute it is now for me to determine whether any further hearing is necessary or whether the appeal can otherwise be disposed of. 
I have now had the opportunity to consider Mr Smith's extensive submissions and supporting documents. Unfortunately for Mr Smith, I cannot see how any of the matters raised have any relevance whatsoever to the issue of whether the Corporation's decision of 12 February 2010 was correct or whether there are issues that were not addressed in Judge Barber's interim decision. Indeed, insofar as the submissions mention the incident of 24 November 2004, it would appear to confirm that this was correctly treated by the Corporation as an aggravation of Mr Smith's 1981 injury. In addition, there are constant references to the application of s 117 of the Accident Compensation Act 2001 which related to suspension of entitlements which, as Judge Barber noted in his interim decision, was not a matter relevant to the appeal given the Corporation's 12 February 2010 decision involved the revocation of cover rather than suspension of entitlements. 
Taken together the matters raised by Mr Smith appear to have all been addressed in the course of Judge Barber's interim decision and there are therefore no further matters requiring hearing in this Court. Instead I agree with Mr Light's submissions on behalf of the Corporation that: 
Mr Smith has filed extensive documents and submissions in response to Judge Powell's minute. These submissions address numerous factual and legal matters, but do not address the correctness of ACC's decision of 12 February 2010, which is the subject of this appeal. Mr Smith does not identify any outstanding issues relating to this appeal that have not been addressed in Judge Barber's decision. 
It is submitted that the appropriate course is for the Court to now dismiss the appeal. ”
In the circumstances I conclude it is appropriate that the appeal should be and is dismissed. There is no issue as to costs. 

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