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Accident Compensation Cases

Gupta v Accident Compensation Corporation (DC, 10/08/16)

Judgment Text

DECISION OF JUDGE G M HARRISON 
Judge G M Harrison
[1]
This is an application by Mr Gupta for leave to appeal to the High Court against a decision of Judge JH Walker of 4 December 2015. The appeal may only proceed to the High Court on a defined question of law, as stipulated by s 162 of the Act. 
[2]
By minute of 12 January 2016 Judge AN Maclean directed the filing of submissions by certain dates, and that the application would then be determined on the papers. 
[3]
On 15 November 2013 Mr Gupta suffered a low back injury at work as the result of a door striking his lower back. He saw his general practitioner the same day and received physiotherapy treatment. 
[4]
He was granted cover on 20 November 2013 for that injury and had returned to work on 18 November 2013, 
[5]
Mr Gupta's employer, Sky City, is an accredited employer and therefore his ACC claim was managed by Wellnz on behalf of Sky City. 
[6]
Mr Gupta was referred to Dr Scott Adams in particular who prepared a report on 10 February 2014 noting that Mr Gupta's back problems had largely resolved and that, in any event, there was a tenuous link between the injury in November 2013 and any ongoing problems. Dr Adams' opinion was consistent with other medical information available to the Corporation from the applicant's general practitioner in particular who had also indicated that the applicant's injury had resolved. 
[7]
On 17 February 2014 Wellnz suspended Mr Gupta's entitlements on the basis that his ongoing problems were not injury-related. He lodged an application for the review of that decision, 
[8]
The Reviewer received further medical opinion from Mr Michael Barnes, Mr Gupta's treating orthopaedic surgeon, who indicated that his ongoing problems were not injury-related. 
[9]
The Reviewer issued a decision on 25 February 2015 dismissing the application for review. From that decision Mr Gupta appealed to this Court. 
[10]
In her decision the Judge reviewed the history of Mr Gupta's medical issues which I have summarised. 
[11]
At that hearing Mr Gupta produced a further medical report from Dr Ng. His conclusion was that “the disc extrusion is more likely to be the result of a sudden injury rather than the gradual deterioration change”. Mr Gupta relied on that report to support the continuation of his entitlements, 
[12]
The Judge then referred to the decision of Judge Powell in Hayes v Accident Compensation Corporation [2015] NZACC 327 671/11 in which he analysed the power of the Corporation to suspend entitlements as set out in s 117(1) of the Act. 
[13]
The Judge said: 
“[38]
Accordingly if the Court finds that: 
(a)
The Corporation did not have a sufficient basis to be not satisfied that the appellant has the right to continue entitlements at the time the decision to suspend was made; and 
(b)
The Court can then consider whether there is a sufficient basis to be not satisfied having regard to all the evidence, ”
[14]
She quoted from the decision of Judge Powell as follows: 
“[41]
In respect to the second element, as stated by Judge Powell: 
[15]
In contrast where there is no dispute over the extent of cover, the question becomes whether the claimant is still eligible for a particular entitlement or entitlements pursuant to s 67(b). If the covered injury has resolved the claimant will for example no longer be eligible for weekly compensation as he or she is ‘no longer unable because of his or her personal injury to engage in employment in which he or she was employed when he or she suffered the personal injury’ pursuant to s 103(2) of the Act. ”
[15]
Judge Walker then said: 
“[42]
In this case the medical evidence available strongly supports the position that the subsequent pain experienced by Mr Gupta was separate and independent from the injury of November 2013. ”
[16]
She then went on to consider the reports from Dr Adams and Mr Barnes, both of which concluded that any ongoing pain suffered by Mr Gupta was not as a result of the injury in November 2013, 
[17]
The Judge then went on to consider Dr Ng's reports. She said: 
“[60]
Even though he was aware of the information from both the CT scan and the MRI scan there is no explanation given as to how the accident in November 2013 contributed to the ongoing symptoms, Nor is there any explanation relating to the identified degeneration which was found in both the 2010 CT scan and the later MRI report. ”
[18]
She then determined on the evidence that the injury in November 2013 does not support a finding that it caused his later lower back pain, and the appeal was dismissed. 
[19]
The application for leave to appeal identifies three grounds. 
[20]
The first was that a later report of Dr Adams on 10 August 2015 was inadmissible, and that his first report in February 2014 did not support the decision to suspend entitlements. However, as counsel for the Corporation points out, s 156 of the Act gives the Court a wide discretion to admit new evidence. Subsection (1) reads: 
“The Court may hear any evidence that it thinks fit, whether or not the evidence would be otherwise admissible in a court of law. ”
[21]
Clearly then the Court had the power to admit Dr Adams' report. Counsel points out that it was both fair and reasonable to admit the report as it was produced in response to new medical evidence filed by Mr Gupta. 
[22]
The next ground of the application for leave is a criticism of Dr Adams' 2014 report. Mr Gupta argues that Judge Walker ought to have disregarded the report or placed less weight on its contents. This is essentially a question of fact, and can only also become a question of law if it can be demonstrated that it was not open for the Judge, on the evidence available, to make the findings she did. The Judge took into account the reports from Dr Adams and Mr Barnes and it seems there was overwhelming evidence to support her findings. 
[23]
The final ground of the application is that there was insufficient evidence to support the decision suspending entitlements. 
[24]
Again, this ground can only constitute a question of law if it was not open for the Court, on the evidence available to it, to find that the “not satisfied” test under s 117(1) was met in February 2014. The Court found on the evidence from Dr Adams and the information from the applicant's general practitioner that suspension of entitlements was justified. 
[25]
In Impact Manufacturing (unreported, Doogue J High Court Wellington AP 266/00 6 July 2001) the Judge held: 
“The contended point of law must be ‘capable of bona fide and serious argument’ to qualify for the grant of leave. ”
[26]
In Northland Co-operative Dairy Co Limited v Rapana [1999] 1 ERNZ 361, 363 the CHas Litigation History which is not known to be negative[Blue] ourt of Appeal said: 
“Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed. ”
[27]
The essence of this case is the divergence of medical opinion between the opinions of Dr Adams and Mr Barnes on the one hand and Dr Ng on the other. The Judge had to decide which of those opinions she accepted, She did not accept Dr Ng's opinion for the reasons set out in para [17 ] above. That is a factual determination on all of the evidence available, The Judge explained her reasons for not accepting Dr Ng's report and favouring the opinions of Dr Adams and Mr Barnes. That is a determination based on all of the factual material before the Judge, and no question of law arises. 
[28]
The application for leave to appeal to the High Court is therefore dismissed, 

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