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Accident Compensation Cases

Accident Compensation Corporation v Goldsmith (DC, 30/09/15)

Judgment Text

RESERVED JUDGMENT OF JUDGE A N MACLEAN 
Judge A N MacLean
[1]
This is an appeal by the appellant Corporation against the decision of Bernard Locke a reviewer, dated 7 March 2014, in which the appellant's decision of 29 October 2013 declining cover for the respondent was quashed. 
[2]
The thrust of the appellant's submissions is to the affect that the reviewer exceeded his jurisdiction and had given directions about compliance with them that was not within his power. 
[3]
The ramifications of the quashing decision was that the reviewer found that a deemed decision had arisen through non compliance with the reviewer's direction. 
The History of the Matter 
[4]
In brief the following are the relevant steps that were taken: 
Following the lodging of a claim for cover arising out of a claim for lateral epicondylitis of the right elbow on 23 May 2012, the respondent in compliance with s 56(2) of the Act advised the appellant on 7 June 2002 that it needed more information and time and that it would “be in touch with you as soon as possible and advise that we are required to make a decision by 21/9/2012”. In fact the operative date for the timeframe was 23 September. 
On 1 August 2012 the appellant advised the respondent that the claim was not approved. 
On 9 August 2012 the respondent applied to review that decision and a review hearing was held on 14 November 2012. 
At the review hearing the respondent produced a report from Mr O'Meeghan, an orthopaedic surgeon which the appellant had not had an opportunity to consider. Accordingly the reviewer adjourned the review hearing part heard making time table directions. A letter dated 15 November 2012 included the following: 
“The hearing has been paused temporarily so that the additional information can be gathered …  ”
The directions, noting that there had been a recommendation of an MRI scan, added: 
“It was agreed that the report be provided to ACC to review and assess if further investigation should be made into the applicant's claimed injury, I afforded ACC two weeks to consider the orthopaedic report and to provide a written response. Once ACC commented on the report the applicant will have one week to file a reply. On receipt of the applicant's reply the matter is to be re-enrolled at the earliest available date. ”
The letter also set out the deadlines to be observed namely: 
Copies of Mr O'Meeghan's report to be provided to ACC by 15 November 2012. 
The appellant to consider the report and provide a written reply confirming if it would further investigate the injury by 29 November 2012. 
The appellant to provide a reply to the response by 6 December 2012. 
It further noted “no extensions will be granted without exceptional circumstances at the discretion of the reviewer. The parties are to comply with the above instructions and deadlines. The reviewer will only alter these instructions and deadlines for compelling reasons … ”
[5]
In a further development on 18 December 2012 further instructions were advised to the parties to reconvene on 27 February 2013 at Thames with the appellant attending by telephone. 
[6]
Then the appellant sent an email requesting an adjournment of the hearing the day prior, stating the reason was to obtain an MRI scan. 
[7]
The response to that request included the following from Tony Hough on behalf of the reviewer: 
“This request to put it mildly is shocking. The dispute came before me on 14 November 2012, the matter was then postponed part heard on the request of ACC to enable it to investigate Mr Goldsmith's claim and to consider if an MRI scan should be taken of the applicant's elbow. I have issued clear directions providing strict timeframes in which ACC were to act. ACC either failed and/or refused to comply with those stated timeframes. I asked the support staff of DRSL to follow up with ACC to see if there was any reason for the delay, no response was received … In light of the manner in which ACC dealt with this dispute I am not inclined to award the adjournment request. The matter will proceed as scheduled. Therefore the review will go ahead tomorrow 27 June at 10.00 am in Thames. 
The claims manager of the appellant had, when making the request, indicated that it considered the decision to decline cover was correct but that ‘whilst ACC does not search for injuries for which cover can be considered, ACC is required to carry out a thorough investigation and Dr Odedera has noted that an MRI would be useful. Mr O'Meeghan also thought this’
It noted also that the appellant had agreed to fund an MRI scan to be arranged. ”
[8]
At the reconvened hearing before reviewer Mr Locke on 27 February 2013 the reviewer quashed the appellant's decision and issued the following direction: 
“ACC is to reinvestigate Mr Goldsmith's claim for cover associated with his claimed injury to his right elbow. The investigation is to include funding and consideration of an MRI scan of his right elbow. For the avoidance of doubt Mr Goldsmith needs to provide ACC as soon as practicable possible, with the MRI scan findings whereafter ACC is to finalise its investigation within the timeframes as stipulated in s 56 of the Act. This decision on face value might seem to have the same outcome should I have granted ACC's second request for an adjournment. However as ACC's decision has now been quashed, the statutory timeframe in which it must conduct its investigation is re-instated. This opens the door for a potential deemed decision should ACC not comply with the timeframes in which it should investigate the claim. Hopefully this will act as an incentive for ACC to comply with the directions issued. 
He also awarded costs. ”
[9]
On 19 July 2013 the appellant wrote to Mr O'Meeghan asking for an MRI scan, as he had recommended, which the appellant would fund. However that was countermanded on 15 August when it appeared the respondent had in fact received an earlier MRI report done on 16 April so it asked Mr O'Meeghan: 
Does the MRI report identify an injury. 
If so what is the injury and could it be causally linked to the accident event claimed. 
[10]
Mr O'Meeghan responded on 20 August. The thrust of his report was to the effect that the mechanism of injury described could have easily produced the tearing described and there was no evidence of any underlying condition. 
[11]
That was referred for BMA comment which confirmed a diagnosis of lateral epicondylitis of the right elbow but generally opined that the activity that had happened had highlighted or unmasked an underlying condition and was unlikely to be linked to the single event described. But the report hinted that if it was being looked at as a gradual process assessment a different approach might be taken concluding: 
“Whilst clearly there is a strong temporal relationship with onset of symptoms of lateral epicondylitis and the accident the causation does not support as being due to a single traumatic event. ”
[12]
The writer of the report, Dr Odedra, the Branch Medical Advisor, noted that he had discussed the matter with another orthopaedic surgeon Mr Taine, who agreed with him that the findings were supportive of an underlying gradual onset condition being rendered symptomatic by an accident event. 
[13]
The appellant claims manager then wrote to Mr O'Meeghan on 3 October 2013 conveying Dr Odedra's opinion and on 17 October Mr O'Meeghan wrote a short note “I agree that the diagnosis is most likely lateral epicondylitis. I suspect that Mr Goldsmith will need to go through a gradual process type injury claim in order to advance his request for surgery”
Analysis and Discussion 
[14]
Before discussing the precise legal issue argued in the appeal it is pertinent to note that on the evidence thus far available there is a general concurrence of expert medical opinion throwing real doubt on any causative link between the injury sustained on 23 February 2012 as described in the claim, and the diagnoses of lateral epicondylitis, albeit that there might be the possibility depending on the work history and other factors of potentially an occupational overuse gradual process claim but to date that has never been explored. Nor indeed did the reviewer get to the point of considering the merits on the causation issue of itself. 
[15]
The appellant's concern is that the affect of a deemed decision is prejudicial to the appellant because it could well end up with cover existing for something which has never been proven to exist, or more importantly, that both parties have not had the opportunity to argue before a reviewer, and then if necessary before the Court. 
[16]
So the prime issue becomes whether or not the reviewer had the power to direct that there was a deemed decision. 
[17]
Mr McLean submitted that the reviewer was within his powers to do what he did bearing in mind the delays that occurred in the appellant making a decision. In fairness to the appellant, it emerges that one of the reasons for some of the delay was that the respondent did not immediately pass on to the appellant an MRI which had been organised and done, so that the appellant went ahead to arrange one, only to find that was unnecessary. 
[18]
Unfortunately for the respondent the law is against him in this area. Although Section 58 in setting out the effect of a failure to meet time limits states that: 
“Where the Corporation fails to comply with a time limit under s 56 … the claimant is to be regarded as having a decision by the Corporation that he … has cover for the personal injury. ”
[19]
Section 56 states that it applies: 
“To a claim for cover … and no later than 21 days after the claim is lodged: investigate the claim … and … make its decision … or decide that it cannot make a decision … without additional information, extend the time … and tell the person making the claim about the decision extension. ”
[20]
The appellant argues, in my view correctly, that s 56 only applies when a claim is first lodged and cannot be revived at any stage in the judicial process (at review or before a Judge) so as to create a deemed decision. 
[21]
The High Court case of Van Helmond v Accident Compensation Corporation1
| X |Footnote: 1
[2014] NZHC 2750 
“It is clear authority for that proposition. 
Although it was dealing with s 57 the same principle applies and as it was explained in Helmond according to s 6(1)‘claim’ means a claim under s 48. Section 48 provides that a person who wishes to claim under the Act must lodge a claim with ACC for cover for his or her injury. There is no room in these provisions to construe the reference to a claim in s 57 as if it included a decision of a Judge on appeal. Rather s 48 provides a claim is lodged by the person who wishes to claim for his or her own personal injury. To interpret that as if, on appeal, claim included the Court's appeal decisions would be to amend the legislation in a very blatant way. ”
[22]
And further in the judgment: 
“The appropriate remedy for a claimant whose reconsideration is not processed with expedition is to return to the Court to seek further directions. ”
[23]
While that decision related to the matter being raised in the District Court clearly the same principle must apply when the matter is being dealt with before a reviewer. 
[24]
A reviewer only has the powers set out in the Act and that does not include any ability to stipulate time provisions leading to a deemed decision, whether defined as being under s 56 or simply framed in the same wording as s 56. 
[25]
The reality is that at this stage, the underlying substantive issue of whether or not a causative link has been established has not been progressed. 
[26]
The appropriate step is to allow the appeal, quash the reviewer's decision and direct that the matter go back to Review. I imagine that whoever the reviewer is to be seized of the matter may wish to make some preliminary directions of his or her own as to the mechanism by which submissions and /or evidence are received and dealt with, but unless there is a need for further directions on the point I think that is best left to the reviewer. 


[2014] NZHC 2750 

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