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Accident Compensation Cases

Orbell-Proctor v Accident Compensation Corporation (DC, 24/08/16)

Judgment Text

Judge G M Harrison
This is an application for leave to appeal to the High Court on a question of law against the decision of Judge MacLean of 28 September 2015. 
By minute of 30 March 2016 Judge Powell directed the parties to file submissions following which the application would be determined on the papers. 
On 6 December 2012 Work Aon, a third party administrator managing work-related claims of the employees of Sanford Group Limited, suspended Mrs Orbell-Proctor's entitlements under s 117 of the Act, which led to a review hearing, decided in favour of the Corporation, and then to the appeal before Judge MacLean. 
The facts are set out in [5] of the decision, but essentially Mrs Orbell-Proctor experienced pain in her left shoulder on 16 November 2011 while shovelling mussels in the course of her employment. 
On 16 December 2011 cover was granted to her for a left rotator cuff sprain as a work-related injury. 
There were numerous medical assessments following that date culminating in an assessment of 16 October 2012, by Dr David Beaumont, an occupational medicine specialist, that the original injury diagnosis was incorrect, and that Mrs Orbell-Proctor's symptoms were not related to the covered injury. 
At [35] the Judge also noted that: 
“Further that no specific injury diagnosis has been identified that caused specific trauma or damage related to the work activity described. ”
Dr Beaumont's conclusion was that cover should not have been granted in the first instance. This led to the withdrawal of entitlements on 6 December 2012. 
There was some conflict in the medical evidence before the Judge, particularly that of Mr Finnis, a neurosurgeon in Christchurch, who reported on 19 June 2012, and concluded that in his view the treatment proposed for the condition was for what appeared to be a personal injury caused by an accident. 
The Judge reviewed all of the medical evidence. He said: 
While the general practitioner and Mr Wilson were clearly still uncertain precisely as to causation issues the end outcome of a review of the information then available, without actually providing a complete answer, was in my view very clearly pointed to the fact that no causal link could be established between the symptoms and the workplace incident, and in particular there was no evidence to support a diagnosis of rotator cuff injury. 
On the contrary, there was a considerable amount of evidence of degenerative change noting the age of the appellant at the time. (She was 65.) 
While there is [sic] now in hindsight the views of Mr Finnis and of Dr Keighley which arguably point in a different direction, the reality is that Mr Finnis' opinion only raises a possibility as to causation and is equivocal in terms of possible locations as to the origin of the symptoms. He also fails to specifically comment on causation. 
While Dr Keighley opined that there had been a significant overuse injury to the left side of the thoracic spine and trapezius muscles, those diagnoses of thoracic spinal and muscle dysfunction, with restrictions and trigger points do not amount to bodily harm these do not meet then the definition of a physical injury under s 20 of the Act. 
Again with the benefit of hindsight which was of course, not available at the time of the decision, can be contrasted a thorough file examination of the whole matter by Dr Beaumont which clearly supports that the substantial cause of problems is age-related within the cervical spine and possibly the left AC joint. 
In certain circumstances, where a Court has the benefit of information not available to the original decision maker, this can influence the decision as to whether or not the decision was properly made, but in this case the only counter medical information available does not assist in that regard. ”
The appeal was consequently dismissed and the Reviewer's decision upheld. 
An application for suppression of Mrs Orbell-Proctor's name was also advanced. The Judge noted that if there were present any “special issues of sensitivity” a non publication order is likely to be made, but in the present case he noted there are no special features raised, other than that the appellant has a distinctive name and that the accessibility of the decision might prejudice her future employment chances. The Judge concluded that that was not sufficient to warrant non publication and he declined to make such an order. 
The application for leave to appeal raised two possible questions of law: 
That the Judge applied the wrong legal test when considering the evidence upon which the respondent had based their [sic] decision. 
That the Judge applied the wrong legal test in respect of determining the basis for suppressing personal information under s 160 of the Act. 
Counsel for the respondent correctly identifies the basis on which leave may be granted. Reference is made firstly to Impact Manufacturing v ARCIC (unreported, Doogue J, High Court, Wellington, AP 266/00, 6 July 2001) it was held- 
“The contended point of law must be ‘capable of bona fide and serious argument’ to qualify for the grant of leave. ”
Reference is also made to the decision of Northland Co-Op Dairy Co Limited v Rapana [1999] 1 ERNZ 361, 363 (CA)Has Litigation History which is not known to be negative[Blue]  where the Court of Appeal said: 
“Care must be taken to avoid granting leave on questions of fact which are dressed up as questions of law. ”
This statement was embellished in a later decision of the Court of Appeal in Inglis v EDS Limited [2001] ERNZ 59Has Litigation History which is not known to be negative[Blue]  at [10]: 
“[To succeed] he had to persuade us that he could clear the very high hurdle to which we referred, for instance in Northland Co-op Dairy Co Limited v Rapana [1999] 1 ERNZ 36 (CA), at p 363: the court will intervene only where the lower Court has come to a conclusion for which there was no evidence or which is inconsistent with the evidence and contradictory of it. In this case, as in others, we are faced with an unrealistic attempt to dress up questions of fact as a question of law. ”
In support of the first ground of appeal counsel for Mrs Orbell-Proctor submitted that the Corporation had not disclosed to the Court the fact of a claim made by her in 2008 in respect of a left shoulder sprain and resultant surgery. 
At paras 22 and 28 of the respondent's counsel's submissions the evidence referring to the 2008 injury by the various medical personnel, and also by the Judge, is set out. 
The Judge concluded that all of the medical evidence submitted to him, which also referred to the 2008 injury, did not establish that there was any causal link between the rotator cuff sprain and the ongoing condition. That is the resolution of a question of fact and no question of law arises. 
Counsel for Mrs Orbell-Proctor also submitted that WorkAon had “rushed to judgment” by suspending Mrs Orbell-Proctor's entitlements before Mr Finnis' evidence was provided. However, at [39] the Judge found that that submission “really missed the main point which is whether or not the criteria of s 117 of the Act had been met at the time of the decision”. Clearly, that was so which again amounts only to an assessment of the evidence. 
The next specified question of law related to the refusal by the Judge to grant a non publication order. Section 160 of the Act provides: 
The court may make— 
an order forbidding the publication of the name, address, or occupation, or particulars likely to lead to the identification, of— 
a party to the appeal; or 
a person who is entitled to appear and be heard; or 
a witness. ”
Subsection (2) goes on to provide that the Court may make such an order “if it is of the opinion that it is necessary and appropriate to do so to protect the privacy of a person referred to in subs (1)(b) … ” 
Subsection (3) then provides that a non publication order may be made for a limited period or permanently and that it may be if limited, renewed for a further period, and if made permanently, may be reviewed by the court at any time. 
It is to be noted that whether or not to make a non publication order is discretionary. In exercising its discretion the Court must be of the opinion that it is necessary and appropriate to do so to protect the privacy of the person. 
This posed question of law was pursued on the basis that the application for suppression was made on the ground “no personal information which could identify the appellant should be published in any decision”. Identifying an appellant is not of itself a ground for the making of a non publication order because, if it were, non publication orders would be made in all appeals. Generally speaking, claimants who have been the victims of a criminal offence, particularly of a sexual nature, are often granted non publication orders, as are claimants with injuries of a sensitively private nature. No basis has, however, been advanced as to why the naming of Mrs Orbell-Proctor will be an invasion of her privacy. 
Her injury to her shoulder is a common enough occurrence as is the finding that it was caused by degeneration rather than a specific injury. 
To challenge successfully the exercise of a discretion, it must be established that the decision was not according to law, that it took into account irrelevant material, or failed to take into account relevant material, or was plainly wrong. None of those criteria are advanced in this case and so no question of law arising from the exercise of the Judge's discretion has been demonstrated. 
For the foregoing reasons the application for leave to appeal to the High Court is dismissed. 

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