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Accident Compensation Cases

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

Judgment Text

RESERVED JUDGMENT OF JUDGE L G POWELL 
Judge L G Powell
[1]
This appeal required determining whether a letter from the Corporation to the appelland, John Marsh, dated 4 November 2004 constituted a decision which gave rise to review rights. 
[2]
The present appeal is one of a number that have finally progressed to hearing and which collectively reflect a fractious and difficult relationship between Mr Marsh and the Corporation since Mr Marsh was first injured in March 2000. 
Background 
[3]
Having been found vocationally independent by the Corporation in June 2002, a decision subsequently upheld at review and then on appeal,1
| X |Footnote: 1
[2005] NZACC 167 
Mr Marsh claimed that his condition had deteriorated from late 2002 onwards. After a somewhat confused and, for Mr Marsh, frustrating process his claims of deterioration were however dismissed by the Corporation by way of a decision dated 10 December 2003. 
[4]
Mr Marsh sought a review. On 3 November 2004, the day the review was to be heard, the Corporation advised that it would revoke the 10 December 2003 decision due to error. As a result, the review did not proceed, Reviewer Kay Stringleman recording: 
“Review 26978: 
Application relates to decision dated 10 December 2003 
Issue: Reassessment of capacity for work/deterioration 
ACC advised that the decision of 10 December 2004 has been revoked. 
No jurisdiction to hear application - decision to be issued formally recording outcome. ”
[5]
The Corporation confirmed the position the next day by a letter dated 4 November 2004: 
“As discussed yesterday ACC has agreed to revoke the decision issued 10 December 2003 regarding deterioration. 
This decision was revoked following recent District Court decisions that have clarified the process to be carried out where capacity for work may have deteriorated. 
What this means is that ACC must recommence the process detailed in Section 108 and 109 of the IPRC Act 2001. 
The assessment happens in two parts: 
Firstly an occupational assessor reviews your skills, education, training and experience, and discuss the types of work that might suit you. 
Then a medical assessor will assess whether you can do any, or all, of the work options recommended by the occupational assessor on a full-time basis (at both 30 and 35 hours a week) — even if you worked part-time before your injury. The medical assessor also takes into account the responses to questionnaires filled in by you and your doctor. They may ask for more information, or for a further assessment by a specialist, before they make their recommendation. 
I have enclosed a list of the current Vocational Independence Occupational and Medical Assessors. 
I have also enclosed a copy of a questionnaire for your completion. This questionnaire will be provided to the medical assessor to assist with his assessment. 
A questionnaire has also been sent to your general practitioner, Dr Edmond, which will also be provided to the medical assessor. 
Please indicate your choice at your earliest convenience and I will arrange the assessments. ”
[6]
Mr Marsh sought a review on the basis that the 4 November 2004 letter was a decision by the Corporation. Reviewer Stringleman, while accepting the letter revoked the decision of 10 December 2003 nonetheless dismissed the application noting relevantly: 
“Where a decision is revised, ACC has two options. The first is to amend the decision and the second is to revoke the decision completed and substitute a new decision. it is clear from the substance of the letter that ACC had chosen the second option. 
My conclusion is that ACC's letter of 4 November 2004 was an administrative process advising Mr Marsh firstly that the decision of 10 December 2003 was revoked, and setting out the procedure which would apply for the making of the fresh decision. Essentially the letter advised Mr Marsh of the first part of a two stage process and there will be no reviewable decision until that process is completed and ACC has issued a new decision. 
My decision is that there is no right or review in respect of the letter of 4 November 2003 and both applications for review are dismissed accordingly. ”
[7]
Mr Marsh appealed. 
Discussion and Analysis 
[8]
As discussed with Mr Marsh and Mr Evans at the hearing, it is difficult to see on what conceivable basis it could be argued that the letter of 4 November 2004 did not constitute a decision. Indeed Mr Evans, as counsel for the Corporation, conceded that “the revocation could be seen as giving rise to a reviewable decision” but that it needs to be seen “in the wider context of the claim and the ongoing management of the claim”
[9]
With respect to Mr Evans I cannot see how the wider management is relevant given the letter revokes a substantive decision, a point also accepted by the reviewer. 
[10]
Quite clearly the only basis upon which the review hearing scheduled for 3 November 2004 could not have proceeded was that the decision it was based on was in the process of being revoked. There was no dispute before me that the Corporation decision of 10 December 2003 was in fact revoked and given that it prevented Mr Marsh challenging the Corporation's refusal to reassess him for deterioration such revocation is clearly a decision within the definition of s 6 of the Accident Compensation Act 2001. 
[11]
It is equally clear that as oral advice to the reviewer could not possibly constitute a decision, the written advice to Mr Marsh contained in the letter dated 4 November 2004 must be the decision, and therefore Mr Marsh was entitled to review that decision. 
[12]
Having agreed with Mr Marsh that the letter of 4 November 2004 was a decision which carried review rights, the question is what now should be done. The fact is the decision made by the Corporation was part of what Mr Marsh had been seeking, that the Corporation's decision of 10 December 2003 should be set aside. Instead, what Mr Marsh was seeking to challenge in attempting to review the 4 November 2004 letter was not the revocation of the earlier decision per se but rather the next step in the process, the reassessment of Mr Marsh's vocational independence proposed in the letter of 4 November 2004. In this regard it was Mr Marsh's submission that instead of proceeding to a reassessment the revocation of the 10 December 2003 decision should instead result in a deemed decision on the application that led to the 10 December 2003 decision pursuant to s 66 of the Accident Insurance Act 1998. 
[13]
This could not possibly be the consequence of the 4 November 2004 decision. In particular for reasons I have detailed elsewhere2
| X |Footnote: 2
[2015] NZACC 194 
it is beyond any dispute that Mr Marsh's injury stood to be administered under the Accident Compensation Act 2001, and under the 2001 Act there is no mechanism to obtain deemed decisions on entitlements. 
[14]
Instead with the revocation of the 10 December 2003 decision refusing a reassessment, the vocational independence decision of 10 June 2002 remained extant, and this could only be set aside in the event a reassessment took place that established Mr Marsh was no longer vocationally independent. The Corporation's proposal setting up a reassessment was accordingly not only appropriate, but in fact the only option available in the circumstances.3
| X |Footnote: 3
I note Mr Marsh was given the opportunity to file submissions following the hearing as to whether there were any other options available under the 2001 Act other than reassessment but he has not identified any, and focused instead on arguments that the 1998 Act applied and that he was entitled to a deemed decision. 
 
[15]
As a result therefore although I have concluded them Corporation's 4 November 2004 letter was clearly a decision, ultimately nothing turns on that. The reassessment proposed in the letter of 4 November 2004 eventually took place, followed by other reassessments, decisions, reviews and appeals which are not relevant to the present appeal. There is accordingly no further action that can be taken in respect to the 4 November 2004 decision and no point in referring the application back to any reviewer for further consideration. 
Decision 
[16]
The appeal is allowed to the extent that the review decision dated 25 January 2005 is set aside on the basis that the letter of the Corporation dated 4 November 2004 was a reviewable decision, but the Corporation's decision itself is, for the reasons set out above, confirmed and indeed endorsed. 
[17]
There is no issue as to costs. 


[2005] NZACC 167 
[2015] NZACC 194 
I note Mr Marsh was given the opportunity to file submissions following the hearing as to whether there were any other options available under the 2001 Act other than reassessment but he has not identified any, and focused instead on arguments that the 1998 Act applied and that he was entitled to a deemed decision. 

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