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Accident Compensation Cases

Raimona v Accident Compensation Corporation (HC, 19/12/01)

Judgment Text

This is an application by Wesley Raimona for special leave to appeal to this Court against a decision by the District Court at Wellington delivered on 20 August 2000, dismissing an appeal from a decision of the Accident Compensation Corporation (“ACC”) pursuant to s 91 of the Accident Rehabilitation and Compensation Insurance Act 1992 (“the Act”). At issue before the Court on that appeal was whether or not Mr Raimona had “a capacity for work” within the meaning of ss 49 and 51 of the Act, thereby entitling ACC to cease payment of weekly compensation to Mr Raimona. 
Mr Raimona applied to the District Court pursuant to s 97(1) of the Act (the Accident Insurance Act 1998 repealed the Act as from 1 July 1999 but the Act's provisions still apply to this application) for leave to appeal to this Court against the originating decision. Mr Raimona's application for leave identified nine alleged errors of law. All were rejected. 
Mr Raimona now appeals to this Court pursuant to s 97(1) of the Act which materially provides:— 
“Where any party is dissatisfied with any decision of a District Court under this Act as being erroneous in point of law, that party may, with the leave of that District Court, appeal to the High Court; 
Provided that, if the District Court refuses to grant leave to appeal to the High Court, the High Court may grant special leave to appeal. ”
The originating decision comprehensively analysed the law and the relevant evidence. At the outset the learned District Court Judge identified the issue for determination on appeal in these terms:— 
“At issue is the respondent Corporation's decision to cease the appellant's weekly compensation on the basis that he has a capacity for work pursuant to ss 49 and 51 of the Act . . . ”
The Judge then fully recited all the relevant background and facts. Mr Raimona, who was then employed as a soldier with the New Zealand Armed Forces, suffered a right knee injury in a rugby game on 19 December 1988. Subsequently, he underwent surgery in a private hospital on two occasions. Both operations were approved and funded by ACC. 
However, in February 1994 Mr Raimona was released from the army due to his knee injury. On 4 February 1994 a doctor certified that he was fit for selected or alternative work which ought to be of a sedentary nature. 
Mr Raimona subsequently received weekly compensation from ACC for loss of earnings. Later in 1994 an orthopaedic surgeon assessed that he had a 5% whole person permanent disability as a result of his knee injury. This assessment was made for the purpose of settling his entitlement to a lump sum award under the statute then in force. 
Thereafter from July 1995 onwards ACC communicated with Mr Raimona for the purpose of rehabilitation and retraining. On 4 April 1998 ACC's Rehabilitation Service reported on its physical and functional assessment of Mr Raimona. The service was satisfied that he was a moderately fit person who suffered limitations due to his knee injury. It recommended that he should be encouraged to continue with exercises for his damaged joint, and should be referred for vocational/careers guidance and to Workbridge. Between April and August 1998 Mr Raimona was referred an outside placement service in accordance with ACC's rehabilitation plan for him. However, this exercise was inconclusive, and there were questions about his attitudes toward it and interest in obtaining outside employment. 
By 30 August 1998 Mr Raimona had still to find employment. At that time ACC considered his suitability for the work capacity procedure. Its review panel determined that he was suitable for it, and ACC arranged for occupational and medical assessors to assess Mr Raimona's condition. 
The occupational assessor concluded that Mr Raimona was suitable for 18 separate employment options. At the same time, in October 1998, the medical assessor, who was both a general practitioner and a musculoskeletal specialist, assessed Mr Raimona as having a capacity for work in nine occupations with no more than 30 hours per week; four of the occupations were subject to a limitation on heavy lifting. 
On 24 November 1998, on the basis of these assessments, ACC wrote to Mr Raimona, advising of its determination that he had a capacity for work and that his weekly compensation would cease on 24 February 1999. 
On 11 January 1999 Mr Raimona applied to review this decision. On 16 April 1999 a review officer conducted a hearing. On 11 May 1999 the officer gave a decision dismissing Mr Raimona's application on the ground that ACC's decision was both procedurally and substantively sound. On 10 June 1999 Mr Raimona appealed to the District Court. 
After a detailed analysis of these facts and relevant evidence against the relevant statutory framework, the District Court Judge dismissed the appeal on the “firm conclusion that [Mr Raimona] has capacity for work” [para 49]. 
In the course of his decision the District Court Judge addressed and answered numerous arguments advanced by Mr Raimona's advocate in support of his appeal. In particular, the Judge expressly found that the decision by ACC's review panel in August 1998 that Mr Raimona was a suitable person for assessment under the work capacity procedure “was both reasonable and in accordance with the criteria outlined in the final version” [para 29]. He also dismissed arguments that ACC had “used the work capacity procedure only as a tool to remove [Mr Raimona] from its books in order to save costs” [para 32], that ACC should have provided retraining for him [para 33], and that it “had a predetermined agenda to assess [Mr Raimona] under the work capacity procedure” [para 35]. In answer to the last allegation the Judge expressly found that the work capacity procedure was lawful and that the independent evidence, including that from Mr Raimona's own general practitioner, supported the review panel's determination. 
The grounds advanced for Mr Raimona's application for special leave to this Court were that the District Court judgment was erroneous in point of law in eight respects. However, written submissions filed by Mr Graeme Minchin, Mr Raimona's counsel, reduced those alleged errors to a total of six. 
I shall deal separately with each of the six alleged errors of law identified by Mr Minchin. First, he argued that the Judge erred in: 
“Finding that the Corporation did not predetermine [Mr Raimona's] referral to the work capacity procedure, when the Act incorporated the principles of natural justice and the only evidence on this point was that the referral was predetermined. ”
The Judge found [para 35]: 
“It was submitted that [ACC] had a predetermined agenda to assess [Mr Raimona] under the work capacity procedure. I reject that. First, as stated earlier, the work capacity procedure is a lawful process for assessing a claimant's ongoing entitlement to weekly compensation. Second, the evidence supports the review panel's determination …  ”
The Judge found, as a matter of fact, that ACC had not predetermined the question of whether Mr Raimona should be assessed under the work capacity procedure. In any event, he found that the evidence available to the review panel supported its determination. Moreover, this alleged error appears to have no relevance to the result of the appeal at all. The issue, repeatedly identified by the Judge, was whether Mr Raimona had “capacity for work”. The Judge found that the medical evidence “overwhelmingly supports [ACC's] decision … ” to that effect. I cannot find any basis whatsoever for arguing that the Judge erred in law on this issue. 
Second, Mr Minchin submits that the Judge erred in law: 
“ … by not determining the matter in accordance with the strict statutory procedure as laid down in the Act. ”
Mr Minchin apparently relies on this passage from the judgment as evidence that the Judge erred [para 28]: 
“When I stand back and look at this case overall, it seems to me that [ACC] properly followed the procedures set out in the Final Version in assessing [Mr Raimona] and was substantively correct in concluding that [Mr Raimona] had capacity for work. ”
The Judge then detailed ACC's compliance with statutory procedures, recording on two occasions his satisfaction that: 
“The appropriate work capacity assessment procedures have been followed. ”
Mr Minchin addressed what I regret having to characterise as diffuse submissions in support of this allegation. I was unable to follow them. He did not identify any legal errors. Suffice it to say, that I have been unable to find one failure by the Judge to determine Mr Raimona's appeal in accordance with the requirements of the Act. To the contrary, the Judge undertook a careful review of the relevant statutory requirements. 
Third, Mr Minchin argued that the Judge erred in finding that: 
“The ACC case manager had a reasonable belief that [Mr Raimona] had a likely capacity for full time work, when there was no evidential basis that the manager could have had a reasonable belief at the time of referral to the work capacity procedure. ”
This proposition appears to be no more than a variant of the first question posed by Mr Raimona. I cannot find any independent reference to it in the decision other than in paragraph 35, which I have already rejected. 
Fourth, Mr Minchin alleges that the Judge erred in law in his:— 
“ … determination that the assessment of a capacity to work was correct, and failed to have regard to the volume of specialist medical evidence in 1992-1994 that diagnosed a progressively worsening condition. ”
As noted, the Judge concluded that the medical evidence before him overwhelmingly supported ACC's decision that Mr Raimona had capacity for work. The Judge carried out an extensive examination of the medical evidence available in 1998; i.e., when Mr Raimona's capacity for work fell for determination. He reached an unequivocal finding based upon it. I am unable to see how an alleged failure to take into account possibly conflicting medical evidence on Mr Raimona's condition four to six years earlier could ever constitute an error of law. 
Fifth, Mr Minchin submitted that the District Court Judge erred in law in finding that: 
“ … an applicant can have a capacity for work in a specific job when the only evidence before the Court on this matter was that of the medical assessor who had placed restrictions on what activities the applicant can undertake in that job. ”
On my assessment, this is the only one of the six questions posed by Mr Minchin which comes remotely near characterisation as a point of law. Arguably, a question of law can arise if the judgment under appeal is based on a finding for which there is no evidence. 
However, here the question as posed actually acknowledges that there was relevant evidence before the District Court. Mr Minchin's complaint is that the evidence was from a medical officer who had placed restrictions on the activities which Mr Raimona could undertake. The judgment specifically recorded the opinion of the particular medical assessor, Dr Prestage, that Mr Raimona was fit for nine of the 18 positions identified by the occupational assessor, except that his fitness for four of those nine positions was qualified by advice that he should not undertake lifting work. Even in reliance on Dr Prestage's evidence alone, the Judge had ample evidence to find that Mr Raimona had “capacity for work” within the definition provided by s 51(2) of the Act, namely: 
“ … to engage in work for which the person is suited by reason of experience, education, or training, or any combination of those things, and that capacity shall be determined having regard to the consequences of the person's personal injury. ”
Sixth and finally, Mr Minchin submitted that the Judge erred in this respect: 
“Where [ACC] seeks to remove an existing entitlement to earning related compensation the onus of proof, in an appeal by way of rehearing, lies on [ACC] not the appellant. ”
Mr Minchin candidly conceded the Judge's finding that the medical evidence “overwhelmingly” supported ACC's decision that Mr Raimona had “capacity for work”. More importantly, Mr Minchin was unable to draw my attention to any statutory support for his novel proposition, given his acceptance that Mr Raimona carried the burden on the appeal. 
In conclusion, I record that during oral argument I repeatedly invited Mr Minchin to identify, with precision, the error or errors of law apparent on the face of the judgment which were material to the Judge's decision to dismiss Mr Raimona's appeal against ACC's decision to cease paying weekly compensation on the ground that he had a capacity for work. Mr Minchin was unable to oblige; his responses were discursive and circular. I had the impression that this application was advanced without a realistic assessment or appreciation of the merits or of what constitutes a question or error of law in the context of an application for special leave to appeal. 
Accordingly, I dismiss Mr Raimona's application for special leave to appeal to this Court. I am prepared to receive memoranda from counsel, to be filed no later than 1 February 2002, on the issue of costs if they cannot agree between themselves. However, I record my opinion that this application was hopelessly misconceived and, unless Mr Minchin is able to provide compelling arguments to the contrary, I am prepared to award costs to ACC on a solicitor/client basis. 

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