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Accident Compensation Cases

Beveridge v Accident Compensation Corporation (DC, 01/09/15)

Judgment Text

Judge G M Harrison
The issue 
The issue in this case is the date from which interest on an entitlement, cancelled but later reinstated, is payable. 
Section 114 Accident Compensation Act 2001 (the Act) provides: 
The Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within one month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment. 
The Corporation is liable to pay interest — 
at the rate for the time being prescribed by, or for the purposes of, s 87 of the Judicature Act 1908; and 
from the date on which payment should have been made to the date on which it is made. ”
The fundamental requirement for the calculation of interest therefore is to fix the date on which the Corporation has received all information necessary to enable it to calculate and make the payment. If the payment is not made within one month of that date, then interest is payable. 
The application for leave 
By application of 11 September 2014 the applicant, Mrs Beveridge, seeks leave to appeal from the decision of District Court Judge Henare of 27 August 2014 to the High Court. The application is brought pursuant to s 162 of the Act which provides that leave to appeal can only be granted on a question of law. Does the application identify a question of law? The application for leave raised four possible questions of law but, in his submissions filed in support of the application, Mr Darke stated that the questions can be argued together as there is a common lis between them. 
The facts are set out extensively in the decision. Essentially, on 20 January 2005 Mrs Beveridge sustained an injury to her back and qualified for weekly compensation. In a report dated 15 August 2007, Mr B Otto reported that in his opinion this injury was no longer causative of Mrs Beveridge's ongoing pain. The Corporation accepted that advice and on 19 September 2007 decided that her entitlements were suspended as from 16 October 2007. 
Mrs Beveridge reviewed that decision and then appealed to the District Court, her appeal being heard by District Court Judge Beattie. In addition to Mr Otto's critical report, Judge Beattie also received new reports particularly from Dr Wigley, a consultant in rheumatology and rehabilitation medicine, dated 29 July 2009. That report concluded Mrs Beveridge's ongoing problems to be a chronic pain syndrome which in his view was injury-related. There was further comment from Dr Otto and then additional comment from Dr Wigley with yet further comment from Mr Otto. 
Judge Beattie considered all of the medical evidence carefully and Judge Henare at [18] of her decision said of Judge Beattie's decision: 
“The Court determined, at para [18] that the competing assertions by the parties were: 
… too finely balanced for the Court to determine that the respondent was able to be satisfied that the appellant was not entitled to continue to receive entitlements, and in line with the principles enunciated in Elwood, I find that the ‘not satisfied’ test cannot be met and therefore the appellant was entitled to continue to receive entitlements as of the date of the decision to suspend them. ”
It is important to note that this decision was based upon fresh evidence from Dr Wigley that was not before the Corporation when it made its decision of 19 September 2007. 
ACC v Miller [2013] NZCA 141Has Litigation History which is not known to be negative[Blue]  
This is a recent decision of the Court of Appeal which was not available at the time of Judge Beattie's decision, although it was before Judge Henare. It was concerned with a claim for interest on a reinstated entitlement and, in particular, the date from which interest on the compensation payable should be calculated. An earlier decision of the Court in Kearney had decided that where the Corporation was wrong in its decision to suspend payment of compensation, then interest was payable from the date of that decision. 
The Court described four possible scenarios in which the Corporation might make a decision to cancel or suspend compensation that is later overturned on appeal, although noted that the four scenarios are not exhaustive. They are: 
The Corporation makes an error in interpreting statute; 
The Corporation misinterprets medical advice; 
The Corporation receives and correctly interprets ambiguous medical advice and reaches the conclusion that compensation ought to be cancelled, but later advice reveals that decision to be incorrect; or 
The original medical advice provided to the Corporation conclusively supports the cancellation of compensation, but later advice reaches a different conclusion. 
If the decision of the Corporation falls within any of the first three scenarios then the Court held that interest is payable from the date of the decision cancelling or suspending the entitlement. Broadly, this is because the Corporation will have been at fault in reaching its decision. In scenario four however the Corporation will not have been at fault, if on all of the available evidence, its decision was correct, and only on later evidence is its decision quashed. 
At [30] of her decision Judge Henare said: 
“Applying Miller to the facts of this case, I find there is no doubt that this case falls within scenario 4. I find the Corporation's decision to suspend entitlements on 19 September 2007 was made on the basis of the clear opinion of Mr Otto that Mrs Beveridge's ongoing problems were due to an underlying osteoporosis condition. Mr Hooker's report was consistent with that view. Dr Wigley's reports took a contrary view that Mrs Beveridge's condition was due to a pain syndrome. In the event, the District Court preferred Dr Wigley's opinion but found the competing opinions were finely balanced. ”
In my view that conclusion is a finding of fact which cannot now be challenged. The Judge had before her all of the medical evidence that was before the Corporation when it made its decision. Her conclusion, having considered all of that evidence, is that the Corporation's decision was made on clear and uncontroverted evidence and, in particular, that there was no ambiguity in the material it relied on. 
The law the learned Judge had to consider was which of scenario (3) or (4) the application for interest fell within. That required a finding on the evidence which was essentially that the material before the Corporation at the time of its decision conclusively supported the cancellation of compensation. Having reached that conclusion on the facts the Judge then properly categorised the application as falling within scenario (4). In my view no question of law arises, which is supported by the Court of Appeal which, at [53] of Miller, said: 
“We do not consider that there is any material distinction between those cases where the Corporation initially accepts that there is an entitlement to compensation and then ceases payment and those cases where the Corporation initially declines compensation. The mere fact that the Corporation has accepted that a claimant is entitled to compensation does not mean that it was correctly accepted, or that all relevant information is necessarily available to the Corporation. Whether, at the time cover is declined, the Corporation has all necessary information is a question of fact to be determined with reference to all of the relevant circumstances. ”
Having said that all issues conflated into one, it nevertheless appeared from submissions that there was a second possible question of law in that it was proposed on behalf of Mrs Beveridge that even if scenario (4) applies, the Corporation had “all information necessary” when it received the necessary medical evidence only, this being the report of Dr Wigley in August 2009 to show that the Corporation's decision was wrong. 
I do not see how that can be so. The wording of s 114 is clear, and it requires that the Corporation has received all information necessary “to enable the Corporation to calculate and make the payment”
As submitted by Mr Tui for the Corporation: 
“In the present case, at the time the Corporation received Dr Wigley's report (in August 2009) the appellant was in receipt of a benefit. In line with s 252, the Corporation was required to reimburse WINZ any benefit payment. Therefore, the Corporation did not have all ‘financial information’ in August 2009. ”
This was previously confirmed by the Judge at [31] of her decision where she confirmed that the arrears payment was made within the one month period of the Corporation receiving all necessary information, and so no interest is payable. 
For all of the foregoing reasons no question of law for reference to the High Court has been identified. The application for leave to appeal must consequently be dismissed. There is no order as to costs. 

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