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Accident Compensation Cases

Jones v Accident Compensation Corporation (DC, 31/01/18)

Judgment Text

RESERVED JUDGMENT OF JUDGE L G POWELL Application to extend time for filing appeal Section 151(3) Accident Compensation Act 2001 
Judge L G Powell
The appellant Thomas Jones seeks leave to file his appeal out of time. The proposed appeal seeks to challenge a decision of the Corporation dated 15 December 2006 which determined he was no longer entitled to an independence allowance. The Corporation's decision was upheld by Reviewer M I Hill in a decision dated 30 October 2007. The deadline for filing an appeal pursuant to s 151(3)(a) Of the Accident Compensation Act 2001 (“the Act”) is “within 28 days after the date on which the reviewer gives a copy of the review decision to the appellant”, which in the normal run of things would have required the filing of the appeal on or before 28 November 2007. The appeal was however not filed until 28 March 2017, some nine years late, and Mr Jones accordingly seeks an extension of time for filing pursuant to s 151(3)(c) of he Act. 
Legal principles for extension of time to file appeal 
Both parties are agreed that the relevant considerations for determining whether an extension of time should be granted are as set out in McDougall v Accident Compensation Corporation1
| X |Footnote: 1
[1983] 4 NZAR 85. 
. In that case the High Court identified four factors to be considered when exercising a discretion to allow a late application: 
The length of the delay' 
The reasons for the delay; 
Merits of the substantive issue on appeal; and 
Any prejudice to the respondent if the time is extended. ”
Mr Tuiqereqere acknowledged that the overriding concern must be the interest of justice, and for this reason “the substantive factors will play a significant role in whether leave is granted to pursue a late application” to appeal.2
| X |Footnote: 2
See for example Bailey v Accident Compensation Corporation [2012] NZACC 142 at [10] 
The Case for Mr Jones 
Craig Jones, on behalf of his father Mr Jones, accepted the appeal had been filed nearly ten years out of time and submitted that the late filing was “inordinate but justified”. In particular Craig Jones explained that at the time the review decision was issued the focus was on another review brought by Mr Jones involving weekly compensation. As this second review was ultimately successful in the High Court,3
| X |Footnote: 3
Jones v Accident Compensation Corporation [2013] NZHC 2458Has Litigation History which is not known to be negative[Blue] 
Craig Jones consider this provided an explanation for not filing the present appeal prior to 2013. In addition Craig Jones believes the High Court decision is relevant to the present appeal and therefore “has a strong bearing on the present appeal so as to justify the out of time application”. From 2013 to 2017 Craig Jones submits that Mr Jones was unwell because of his age, being in his 80s. 
With regard to the substantive merits of the appeal Craig Jones submitted that the 2006 independence allowance assessment carried out by Dr Tony Chew was flawed. In particular Craig Jones submitted that Dr Chew: 
Failed to list the x-ray and specialist reports he had considered in undertaking the assessment; 
Questioned the basis for a comment by Dr Chew that Mr Jones had been able to pursue an active retirement lifestyle in Australia; 
Failed to take into account relevant evidence including an orthopaedic report from Gareth Farr and various x-ray reports which showed Mr Jones' circumstances had not improved since an earlier assessment undertaken by Dr Chew in 1998; and 
‘Assaulted’ Mr Jones in the course of the assessment by undertaking an examination for cauda equina syndrome. ”
Discussion and Analysis 
In commencing my analysis I note that Mr Tuiqereqere on behalf of the Corporation acknowledges that with regard to the fourth criteria set out in McDougall there is no prejudice to the Corporation should the time for filing be extended. 
I now turn to the other three criteria set out in McDougall. First, there can be no doubt that the delay in filing the appeal is inordinate, it being some nine years and four months out of time. 
Likewise, as Mr Tuiqereqere has noted there is no evidence to support the reasons given by Craig Jones to explain the delay in filing. In any event it is not clear why the second review cited by Craig Jones would have precluded the filing of the present appeal. Specifically it is clear from the High Court decision that resolved the issues the other review in favour of Mr Jones that the second review was determined in June 2008, some seven months after the review decision subject to the present appeal. Furthermore no explanation has been given as to why no appeal was filed between the other review decision and when that issue was determined in the District Court (2009) and again between 2009 and the hearing of the issue at stake in the second review in the High Court in 2013. It is also noted that Mr Jones was represented by counsel in the High Court proceedings, and no medical evidence has been provided that Mr Jones was incapable of taking steps to file the present appeal between the conclusion of the High Court proceedings in 2013 and the filing of the appeal in 2017. 
I turn now to the substantive merits of the appeal. There is no dispute between the parties that the assessment undertaken by Dr Chew to ascertain whether Mr Jones continued to remain entitled to an independence allowance stood to be considered pursuant to Part 4 of Schedule 1 of the Accident Insurance Act 1998 which required the assessment to be undertaken pursuant to the American Medical Association Guides to the Evaluation of Permanent Impairment, 4th edition (“AMA4”), and the ACC User Handbook. 
In relation to this type of assessment the case law is well settled that in order to succeed in an appeal it is for the appellant to establish on the balance of probabilities that the assessment was in some way flawed or incorrect. Generally this has been taken to require credible expert evidence directed at the specific aspects of the assessments which are said to be incorrect but does not require a full alternative assessment.4
| X |Footnote: 4
W v Accident Compensation Corporation [2004] NZACC 284 per G J Hole. 
Against this background I am satisfied that none of the issues raised on behalf of Mr Jones indicate any substantive merit to this appeal. Dealing with the matters raised by Craig Jones in turn: 
Failure to list x-rays and other reports - The concern arises because in Dr Chew's 1998 assessment of Mr Jones he had listed the reports he considered before setting out the details of his assessment. The absence of such a list in the 2006 assessment does not however of itself constitute a flaw, let alone one that could invalidate the assessment. First, there is no requirement in either AMA4 of the ACC User Handbook for such reports to be listed. Secondly, and more substantially, as it was Mr Chew who had undertaken the previous assessments in which he had referred to the reports he had viewed and as he referred specifically to his 1998 assessment in conducting the 2006 assessment, he was clearly aware of those earlier reports. 
Failure to refer to relevant evidence - Craig Jones placed some weight on the decision of Courtney J in the 2013 High Court decision regarding the failure of the District Court Judge in that case to refer to particular evidence including x-ray reports in particular. This is not a concern in the present case. First, as set out above an independence allowance assessment pursuant to the 1998 Act is a particular type of assessment used to determine impairment by reference to particular criteria contained in the AMA4. Secondly, and in any event, the particular criticism made by Craig Jones is not correct. Specifically Dr Chew refers to the most recent x-ray of Mr Jones available at the time of the assessment (dated 12 May 2003) in the body of his report.5
| X |Footnote: 5
It is noted that a further set of x-rays were taken on 21 December 2006 but this post-dated both the assessment and the decision by the Corporation which is the subject of the appeal. 
It is also not correct to say that Mr Farr's report had not been taken into account. Mr Farr's report is not obviously relevant to the independence allowance assessment undertaken by Dr Chew and was instead focused on the nature of the issues in Mr Jones' back, what pathology was causing them and whether they were the result of his covered injury. Despite this Dr Chew has noted that Mr Jones ‘has a coexisting condition in the form of degenerative disc disease of the lumbar spine and grade 1 developmental (isthmic) spondylolisthesis of L5 on S1’, which matches the analysis provided by Mr Farr. It is noted that any greater reliance or reference to Mr Farr's report would not in fact have assisted Mr Jones as it may well have provided a basis for Dr Chew to apportion out incapacity for Mr Jones' non injury related conditions on the basis indicated by Mr Farr. Instead Dr Chew proceeded on the basis that all incapacity identified in his assessment could in fact be attributed to Mr Jones' covered injury. 
The source for the comment that Mr Jones had been able to‘pursue an active retirement lifestyle in Australia’ - It is apparent from Dr Chew's assessment that this was information provided to him by Mr Jones and does not of itself provide any basis for undermining Dr Chew's assessment or conclusions. 
The alleged assault - The alleged assault was the subject of a complaint to the Health and Disability Commissioner by Craig Jones on behalf of Mr Jones. It was alleged that Dr Chew had inappropriately examined Mr Jones when Dr Chew knew or should have known that Mr Jones was not suffering from cauda equina syndrome. Dr Chew responded to the allegation and advised that he had done his best to explain why the assessment was required and that if cauda equina syndrome had been identified it would potentially have added to Mr Jones' impairment rating. As a result of Dr Chew's explanation the Health and Disability Commissioner concluded there was no basis to take further action on the complaint. Having read Dr Chew's explanation I too conclude in the absence of medical evidence to the contrary, that the examination appeared to have been appropriate and certainly provides no basis for concluding that Dr Chew's overall assessment of Mr Jones' impairment was in any way in error. ”
Overall it is clear the assessment undertaken was based on Dr Chew's clinical examination of Mr Jones, and confirmed by the peer review undertaken by Dr Rob Percival which confirmed that the correct procedure in relation to AMA4 had been utilised. Likewise, Dr Chew provided clear and coherent reasons as to why Mr Jones' impairment appears to have improved from the previous impairment assessment he undertook in 1998. 
Given these circumstances and the lack of contrary relevant evidence I am satisfied that the appeal cannot possibly succeed. 
As a result, and notwithstanding the Corporation accepts that it will not be prejudiced if the appeal is allowed to proceed, I conclude that given the delay in filing the appeal, the lack of any compelling reasons to explain the delay and the lack of any substantive merit in the proposed appeal, I decline to extend time for the filing of the appeal. 
The application for leave to extend time for the filing of the appeal is declined. The appeal is dismissed. There is no issue as to costs. 

[1983] 4 NZAR 85. 
See for example Bailey v Accident Compensation Corporation [2012] NZACC 142 at [10] 
Jones v Accident Compensation Corporation [2013] NZHC 2458Has Litigation History which is not known to be negative[Blue] 
W v Accident Compensation Corporation [2004] NZACC 284 per G J Hole. 
It is noted that a further set of x-rays were taken on 21 December 2006 but this post-dated both the assessment and the decision by the Corporation which is the subject of the appeal. 

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