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Accident Compensation Cases

Marsh v Accident Compensation Corporation (DC, 10/07/15)

Judgment Text

Judge L G Powell
This is an application for leave to appeal a judgment of Judge Barber delivered on 3 April 2012.1
| X |Footnote: 1
[2012] NZACC 115 
Judgment Appealed Against 
The appeal before Judge Barber involved two issues. The first, and of primary importance to the applicant, Mr Marsh, concerned a decision of a reviewer dismissing an application by Mr Marsh for a deemed decision on entitlements on the grounds that the Accident Compensation Act 2001 applied to Mr Marsh's covered injury rather than the Accident Insurance Act 1998 (“relevant Act issue”). The second issue was whether following a reassessment of Mr Marsh's vocational independence in early 2005 the Corporation was correct in concluding that Mr Marsh remained vocationally independent in three work types as at 5 April 2005 (“vocational independence issue”). 
With regard to the relevant Act issue Judge Barber undertook an analysis of the relevant statutory provisions2
| X |Footnote: 2
At [37] to [49] of the judgment. 
and two earlier decisions of the District Court3
| X |Footnote: 3
Marsh v Accident Compensation Corporation [2005] NZACC 167 per Judge Beattie and Marsh v Accident Compensation Corporation [2008] NZACC 219 per Judge Barber (where Judge Barber dismissed an application for leave to appeal Judge Beattie's 2005 decision). 
which had held that the 2001 Act applied, before concluding: 
The fundamental problem with Mr Marsh's submission in relation to the application of the 1998 Act is that it is prefaced on the basis that Mr Marsh had an accident insurance contract, as that term is defined in the 1998 Act. However, what he had was a CoverPlus Agreement with ACC. A person with a CoverPlus Agreement with ACC is not a person with an accident insurance contract under Part 7 of the 1998 Act, and therefore, not a person to whom s 342 of the 2001 Act applies. 
As the 1998 Act does not apply to Mr Marsh, there can be no s 66 decision deeming him entitled to weekly compensation. 
Mr Marsh also relies upon a decision of Mr Walker, Reviewer, dated 23 June 2003; but that decision did not turn on the issue of which Act applied (the Reviewer declined jurisdiction) and, therefore, is not the binding authority which Mr Marsh contends it to be. 
There is District Court authority from the decisions of Judges Beattie and Barber that confirm that it is the 2001 Act which applies to Mr Marsh's claim. Even if Mr Marsh was correct in his assertion that Reviewer Walker had concluded that the 1998 Act applied (which is not accepted), that decision has been overtaken by the District Court decisions of 167/05 and 219/08 which are binding, by way of precedent, on a subsequent reviewer. ”
Likewise with regard to the vocational independence issue Judge Barber considered the reassessment process4
| X |Footnote: 4
At [15]-[26] of the judgment. 
and noted for completeness a subsequent vocational reassessment which took place in 2007.5
| X |Footnote: 5
At [27]-[33] of the judgment. 
Judge Barber then considered the evidence before him and concluded: 
Reassessments were considered in the decision of Madgwick (227/05) where Judge Cadenhead said: 
‘ACC has no ongoing obligation to provide vocational rehabilitation after the date of determination (of vocational independence) … For this reason. It would be quite inappropriate for the occupational and medical assessors when carrying out a vocational independence reassessment to focus on vocational rehabilitation. The effect of the earlier finding of work capacity or vocational independence is that a claimant has been provided with sufficient rehabilitation. ’”
As the High Court in the Martin judgment (supra) confirmed, ACC cannot conclude vocational independence based on an identified flawed assessment. Martin is authority for the proposition that neither a reviewer nor the District Court can simply rubber stamp a medical assessor's opinion, or give it any pre-eminence, by virtue of it being the opinion of a duly appointed and qualified medical assessor in terms of the Act. The quality of the report, including the thoroughness of the detail, and the merit of any other contrary opinions must be considered. 
In this appeal, there are no other contrary or critical opinions of either the occupational assessor or the medical assessor's reports. Mr Marsh's own GP, Dr Edmonds, has confirmed that there are no other injury related matters outstanding which could prevent Mr Marsh from being vocationally independent. I find from the evidence referred to above, that the appellant has vocational independence; it has not deteriorated as at material times; and there has been no deemed decision in favour of the appellant. ”
As a result the appeal was dismissed. 
Issues Raised by Applicant 
Mr Marsh has filed extensive submissions in support of the application, which (excluding reply submissions) now total some 376 pages. In the course of these submissions, Mr Marsh has identified what he submits are 25 points of law with regard to Judge Barber's judgment which can be grouped into the following categories (with Mr Marsh's numbering noted in brackets): 
Breach of privacy/release of information issues (issue L1); 
Issues relating to the status of the Walker review decision and whether reviewer Walker's findings that the 1998 Act applied are binding on subsequent decision makers (issue L2, 4, 5, 19 and 20); 
Issues with Judge Beattie's 2005 decision (issues L3, 4 and 8); 
Issues as to whether the 1998 Act or 2001 Act applied to Mr Marsh's injuries (issues L6 and 16); 
Factual matters relating to Judge Barber's judgment (issue L7, 9-15, and 21-25); and 
Issues relating to the integrity, vires of the review decision (issues L17 and 18). 
Having looked carefully at the submissions raised it is clear that with two exceptions the points identified do not amount to issues of law. In particular it is clear that issues of privacy and/or release of documents have no relevance to the conclusions reached by Judge Barber in his judgment. Likewise Judge Beattie's 2005 judgment is not an issue in this application. While no doubt Mr Marsh has criticised Judge Beattie's 2005 judgment in order to undermine Judge Barber's reliance on it in his own judgment, such criticism is misplaced. First, Judge Beattie's judgment is final. Leave to appeal the judgment was sought by Mr Marsh but dismissed by Judge Barber in 2008,6
| X |Footnote: 6
[2008] NZACC 2019 
with the result that the judgment can no longer be subject to challenge. Secondly, even if there were mistakes in Judge Beattie's judgment, as alleged by Mr Marsh, I cannot see how they would affect Judge Barber's 2012 judgment as ultimately this judgment hinges on Judge Barber's own analysis of the relevant legislation and the vocational reassessment carried out in 2005. 
Similarly none of the factual matters raised by Mr Marsh can possibly constitute errors of law in the present case. These relate to the vocational independence reassessment and Judge Barber has clearly determined that both the vocational independence occupational assessment and vocational independence medical assessment were unchallenged and determinative of the issue. This was a finding open on the evidence before him and therefore cannot give rise to any issue of law capable of bona fide and serious argument as is required before leave to appeal can be granted. Any issues relating to the vires of the review decision are equally misconceived as unless there was a valid review decision there was no appeal for Judge Barber to consider. 
This leaves the issue relating to the status of Reviewer Walker's decision and which Act should otherwise apply. Whether either of these issues constitutes an issue of law capable of bona fide and serious argument such as to warrant granting of leave to appeal is considered in the next two sections of this judgment. 
Whether Walker Review Decision was Binding on Judge Barber 
As noted in [3] above Judge Barber considered that Reviewer Walker's decision of 20 June 2003 was not binding on him because it “did not turn on the issue of which Act applied (the reviewer declined jurisdiction) and, therefore, it is not the binding authority which Mr Marsh contends it to be”
Since Judge Barber issued his judgment the status of Reviewer Walker's decision has received further judicial consideration. In a interim judgment issued on 11 June 20147
| X |Footnote: 7
[2014] NZACC 146 which has not been subject to appeal, apparently because of the interim nature of the decision. 
Judge Ongley considered Reviewer Walker's decision in some detail before noting: 
Three relevant points emerge from Mr Marsh's claim that Mr Walker made a binding determination that the 1998 Act applied to his claim: 
Mr Walker decided as a question of law that Mr Marsh had an accident insurance contract because such contracts included contracts with the Corporation (as distinct from an insurer); 
Mr Walker finally decided the review on a different point, namely that Mr Marsh's letter to Catalyst was not an application for any entitlement, but an argument about a previous decision; 
A Reviewer's decision on a question of law is not binding, either on the District Court or on other Reviewers. ”
As a result Judge Ongley went on to conclude: 
In his written submissions, Mr Marsh stated: 
‘Cause of action Estoppel applies, meaning the 1998 Act applies: 
ACC and the appellant relied on the Walker decision, as did reviewers in 8 following review decisions which ruled the 1998 Act applied. Further, ACC verbally advised the appellant and in writing (eg 30 Oct 2003, and Dec 2005) that the 1998 Act applied to the appellant, and he did not have access to remedies under the 2001 Act. The appellant relied on these agreements and directions from ACC that the 1998 Act applied, and as a result failed to seek remedies under the 2001 Act; such as remedies under section 134(1)(b) which would have applied had the 2001 Act directions and agreements if the 1998 Act is not now applied to his claim. ’”
There is no cause of action estoppel in the appellant's favour. The ‘cause of action’ in 2003 was a claim to entitlement for a reassessment of capacity to work. He failed in that claim, so any cause of action estoppel would operate to prevent a further claim on the sale ‘application’
Neither is there an issue estoppel the appellant's favour. The issue ultimately decided by Mr Walker was that a letter of 4 November 2002 was not an application and did not refer to evidence (medical opinion or certification) usually essentially to an application for reassessment. Mr Walker's finding that the 1998 Act applied was (a) not a ground for his decision, and (b) a finding on a matter of law that could not raise an estoppel. In any case a reviewer is not able to make a binding pronouncement on a matter of law. ”
Having considered the issue I respectfully agree with both Judge Barber and Judge Ongley that there is no basis upon which any bona fide or serious argument could be made that Reviewer Walker's decision of 20 June 2003 could be determinative of what Act applies for all purposes since that date. 
Instead I can see no error in the conclusions reached by Judge Barber (or indeed Judge Ongley). It is clear that ultimately notwithstanding Reviewer Walker's purported finding that the 1998 Act applied to Mr Marsh's injury, Reviewer Walker's decision actually turned on whether a letter from Mr Marsh to the Corporation dated 4 November 2002 was an application for entitlements. As Reviewer Walker concluded it was not and declined jurisdiction to consider Mr Marsh's application, Reviewer Walker's conclusions with regard to whether the 1998 or 2001 Act applied were therefore in the nature of obiter comments and are not therefore binding on subsequent decision makers. 
More particularly, the decision of the Court of Appeal in Joseph Lynch Land Co Limited v Lynch8
| X |Footnote: 8
[1995] 1 NZLR 37 
is also relevant. In that case the Court considered with regard to the concept of issue estoppel: 
“Issue estoppel is concerned with the prior resolution of issues rather than causes of action. In the same paragraph of Halsbury as that referred to above, it is said that issue estoppel precludes a party from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Cross on Evidence 4th ed, 1989). 
It is to be noted that both Halsbury and Lord Denning MR refer to the need for the point said to be the subject of the issue estoppel to have been raised in the previous litigation. Halsbury uses the phrase ‘distinctly put in issue’ and Lord Denning spoke of ‘issues raised which are necessary for the determination’. ”
In that case a proposition not advanced by a party had been found to be determinative against the other party. In rejecting that approach the Court observed that whether a decision could create an estoppel required a determination of the question: 
“ … whether in the circumstances it is reasonable to regard the earlier decision as a final determination of the issue which one of the parties now wish to raise.9
| X |Footnote: 9
At [43] 
A number of the reasons that led to the Court in that case to rejecting an argument that issue estoppel existed are equally pertinent to the present appeal. First, it was not evident from Reviewer Walker's decision that there had been any real argument before him as to what Act applied. Instead, as noted, the substantive issue before Reviewer Walker was the status of Mr Marsh's letter rather than the applicable legislation. Secondly, there was no reason for the Corporation to appeal the judgment given that it had been substantively successful at the review hearing. Indeed if the Corporation had pursued an appeal the argument may well have been that the appeal was moot, given the reviewer's substantive finding dismissing Mr Marsh's application for review. 
Taken together I therefore consider that there is no basis for granting leave to appeal on this issue. 
Whether Judge Barber was Wrong to Determine the 2001 Act Applied 
In reaching his conclusion that the 2001 Act applied Judge Barber was required to consider Part 10 of the 2001 Act which provided that some parts of the 1998 Act continued to have effect notwithstanding the enactment of the 2001 Act. 
The critical provision is s 342 of the 2001 Act which provides: 
Savings in respect of accident insurance contracts and injuries to which contracts apply under 1998 Act 
The 1998 Act continues to apply, despite its repeal and with any necessary modifications, for the purposes of this Part in respect of— 
any personal injury to which an accident insurance contract applies; and 
any accident insurance contract; and 
any obligations of an insurer in relation to work-related gradual process, disease, or infection, or to subsequent injuries. 
In particular, without limitation,— 
the 1998 Act continues to apply in respect of any personal injury suffered on or after 1 July 1999 and before 1 July 2000; and 
Parts 2 to 6, Part 12, and Schedules 1 to 4 of the 1998 Act continue to apply, with necessary modifications, to determine what personal injury is covered, how to make claims, what the entitlements are, and how to resolve disputes about claims; and 
all relevant and necessary terms of the accident insurance contract continue to have effect (whether those terms are express or are implied by the 1998 Act); and 
all relevant and necessary terms of any risk sharing agreement continue to have effect. ”
With regard to the section Judge Barber noted: 
The relevant parts of the definition of “accident insurance contract” under s 13(1) of the 1998 Act provide: — 
‘accident insurance contract' 
means, subject to Section 278, a contract entered into under Section 169 or Section 176 or Section 180 to provide statutory entitlements when a person suffers personal injury for which he or she has cover; …  ’”
The crucial issue in relation to this matter, is whether Mr Marsh had an ‘accident insurance contract’ under the 1998 Act. If so, then pursuant to s 342, he would have been entitled to the benefit of the strict time limit within which an insurer under the 1998 Act was required to make an entitlement decision the s 66 argument. 
This involves a consideration of s 13(1) of the 1998 Act, when considering an ‘accident insurance contract’
Section 169 of the 1998 Act refers to the obligation on employers to insure. This has no application to Mr Marsh. 
Section 176 provides that a self-employed person may enter into accident insurance contracts, with an insurer. 
Section 180 provides that private domestic workers may enter into accident insurance contracts. 
‘Manager’ is defined in s 278 as meaning ‘the Corporation’
‘Insurer’ is defined in s 13(1) as 
Means an insurer registered under section 201, while that registration continues under section 204: 
Includes the manager (in relation to an insured for whom the manager is required to provide entitlements), except for the purposes of Part 7 to 9 and the provisions of Part 12 associated with those Parts …  ’
(emphasis added)
Parts 7 to 9 of the Accident Insurance Act 1998, relate to the competitive provision of accident insurance and include Sections 169, 176 and s 180, already referred to. 
The Cover Plus agreement originally entered into by Mr Marsh, was not a contract entered into under any of sections 169, 176 or 180 of the 1998 Act. The Cover Plus agreement merely represents a statement of statutory cover, entitlement obligations and premium obligations which reflect the provisions of the 1998 Act, which applied by default when a self employed person did not elect to enter into an accident insurance contract with an insurer under any of those sections. 
A contract under any of those sections, which appear in Part 7, must be with an ‘nsurer’. This is of particular significance in relation to this appeal, because the definition of insurer expressly excludes ACC, for the purposes of part 7 of the 1998 Act. This seems to be the key issue of difference between ACC and the appellant who maintains that he has such a contract. ”
This analysis underpinned his conclusion at [58] of Judge Barber's judgment10
| X |Footnote: 10
Set out at [3] above 
that the Cover Plus agreement held by Mr Marsh was not an “accident insurance contract” for the purposes of s 342 of the Act, and therefore the 1998 Act could not apply. 
Judge Barber's reasoning was accepted by Judge Ongley in his 2014 decision noted earlier.11
| X |Footnote: 11
At [25] 
I likewise agree with Judge Barber's conclusion and in particular note that once Judge Barber had found on the facts before him that Mr Marsh did not have an accident insurance contract for the purposes of the 1998 Act, no alternative conclusion as to the legislative regime was open to him as it is clear that the Corporation could not be an insurer for the purposes of the 1998 Act. 
I note for completeness that the position as set out by Judge Barber in fact only applied up until 31 March 2000, three days after Mr Marsh's injury. After that date ss 7 and 8 of the Accident Insurance Amendment Act 2000 came into force. These sections not only repealed ss 169, 176 and 180 referred to by Judge Barber in his analysis, but repealed those parts of the definition of “insurer” so that henceforth the Corporation was an insurer for all purposes. The combined effects of these amendments were to preclude further accident insurance contracts from being issued under the 1998 Act for the remaining period that the 1998 Act remained in force prior to its repeal by the 2001 Act. These changes further support the interpretation that the Corporation could not be an insurer for the purposes of issuing an accident insurance contract, but became an insurer for all purposes only once accident insurance contracts could no longer be issued. 
Taken together it is quite clear that there is no issue whatsoever with regard to Judge Barber's conclusion that the 2001 Act applies to Mr Marsh's injury, let alone any issue which is capable of bona fide and serious argument. As a result there is simply no basis to grant leave to appeal on this issue. 
The application is dismissed. There is no issue as to costs. 

[2012] NZACC 115 
At [37] to [49] of the judgment. 
Marsh v Accident Compensation Corporation [2005] NZACC 167 per Judge Beattie and Marsh v Accident Compensation Corporation [2008] NZACC 219 per Judge Barber (where Judge Barber dismissed an application for leave to appeal Judge Beattie's 2005 decision). 
At [15]-[26] of the judgment. 
At [27]-[33] of the judgment. 
[2008] NZACC 2019 
[2014] NZACC 146 which has not been subject to appeal, apparently because of the interim nature of the decision. 
[1995] 1 NZLR 37 
At [43] 
Set out at [3] above 
At [25] 

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