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Accident Compensation Cases

Shann v Accident Compensation Corporation (HC, 08/08/08)

Judgment Text

RESERVED JUDGMENT OF CLIFFORD J 
Clifford J
Introduction 
[1]
Mr Shann suffers from recurring back pain. 
[2]
Mr Shann attributes that pain to two accidents he suffered in 1996 and, now, to an accident in 1982. 
[3]
ACC accepted Mr Shann's claim for the first of the 1996 accidents, and Mr Shann received weekly compensation. In 2003 ACC suspended that entitlement. 
[4]
In 2007 the District Court upheld a decision by ACC not to reinstate that entitlement. 
[5]
The District Court subsequently declined Mr Shann's application to appeal to this Court from that decision. Mr Shann now applies to this Court for special leave to appeal that decision. 
[6]
Special leave to appeal on a question of law against a decision of the District Court may be granted by the High Court pursuant to s 162(3) of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the 2001 Act”). The principles guiding the exercise of its discretion were outlined by Fisher J in Kenyon v ACC [2002] NZAR 385Has Cases Citing which are not known to be negative[Green]  as including: 
“(a)
The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1 NZLR 708 (CA)Has Cases Citing which are not known to be negative[Green] 
(b)
Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle, Manawatu Cooperative Dairy Co Ltd v Lawry [1988] DCR 509Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43Has Cases Citing which are not known to be negative[Green] 
(c)
The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O'Loughlin v Healing Industries Ltd (1990) 2 PRNZ 464Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
(d)
It is for the Applicant to show that leave is required in the interests of justice: Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
(e)
As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which ahs not been properly taken into account: Brown v Chow Mein Fashions Ltd. ”
[7]
For leave to be granted, the matter must raise some question of serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of further appeal. In the end, the guiding principle is one of justice (Waller v Hider [1998] 1 NZLR 412 (CA)Has Litigation History which is not known to be negative[Blue]  and Snee v Snee [2000] NZFLR 120 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] ). 
Background 
[8]
Mr Shann first suffered a back injury in 1982 when he fell in a mountain race, but he was largely pain-free for the following 15 years. In June 1996 Mr Shann felt a sharp pain in his back while up a ladder installing a television. He lodged a claim with ACC for cover relating to a lower back strain, and was granted weekly compensation. In December 1996, when attending treatment therapy at an injury and rehabilitation clinic, he slipped and suffered further lower back pain. 
[9]
In May 2003, Mr Phillips, an Orthopaedic Surgeon, was asked by Catalyst Insurance Services — on behalf of ACC — to provide an opinion as to whether Mr Shann's 1996 back injury was still causing his incapacity, or whether the injury had recovered and the incapacity was a result of degenerative changes. Mr Phillips concluded that there was good evidence of degenerative changes at the L4/5 disc level of the spine but that soft tissue injuries, such as those suffered in 1996, would usually resolve within 6 weeks. Mr Phillips opined: 
“ … therefore, the underlying cause of his disability is not the injuries of 1996 per se. Though it is possible that over the years he had suffered a series of injuries to this single disc level which has gone on to degenerative disc disease. 
In specific answer to your question Mr Shann's 1996 back injury is recovered and his ongoing incapacity is the result of degenerative change. ”
[10]
On 27 May 2003, ACC issued a decision withdrawing Mr Shann's entitlement to weekly compensation. ACC had concluded that Mr Shann was no longer suffering from the effects of the 1996 injury. Mr Shann unsuccessfully applied for review of that decision. His appeal against the review was heard in the District Court by Judge Beattie. Mr Shann did not appeal from Judge Beattie's decision. Before me, Mr Shann accepted that Judge Beattie had made a correct decision on the basis of the material before him. 
[11]
Subsequent to Judge Beattie's decision, Mr Shann considered that he had obtained new medical evidence in support of his contention that his degenerative disc disease, and therefore the pain he suffers, was causally linked to the earlier accidents. After discussion with ACC he made two new claims. The first was lodged on 15 March 2006 and sought cover for “chronic pain syndrome”
[12]
In response, ACC sought a further opinion from a Mr Robertson, an orthopaedic and spinal surgeon. The position was explained to Mr Robertson, in a letter of ACC dated 20 July 2006, in the following terms: 
“In an attempt to simplify a complex issue I understand the main thrust of the matter is that Mr Shann had an accepted injury to his back related to an incident when he was installing a TV on 28 June 1996. Cover was granted by ACC but eventually declined as ACC was of the opinion the initial injury had resolved and ongoing symptoms were attributable to degenerative factors. This was disputed by Mr Shann and the matter proceeded to review and appeal. The Court [Judge Beattie] supported ACC's position and dismissed Mr Shann's appeal application. Mr Shann remains aggrieved regarding the whole process. … It would appear that Dr Britt has now lodged a claim for a ‘chronic pain syndrome’ following discussions with Mr Shann and his advocate. 
As stated previously, I'm unsure what Dr Brit's has requested from you. … What ACC needs to establish however is whether his current symptoms are related to an accident. That is, is there evidence of a direct causal connection between his current presenting symptoms and the injury sustained while installing a TV back on 28 June 2003 [clearly a mistake — intended to be 1996]. 
… Your opinion on his current symptoms and causation would be most helpful. While he may meet the diagnostic criteria for a chronic pain syndrome or similar the issue for ACC is the underlying causation or triggering event. That is, is the pain secondary to degenerative changes, other factors, or has his presentation changed since Mr Phillips, Mr Rao and Dr Crerar reviewed him supporting that his symptoms, however they may be defined or diagnosed, are now attributable to the injury of 28 June 2003 [sic]. ”
[13]
Mr Robertson provided a report to ACC. Following the receipt of that report, ACC advised Mr Shann, by letter of 28 August 2006, in the following terms: 
“Having now viewed Mr Robertson's reports ACC is satisfied that there is no new evidence to suggest Mr Shann's original injury has changed in any way, nor that the causation of his current symptoms has changed since Judge Beattie considered the matter. ”
[14]
Further, ACC advised Mr Shann that Mr Robertson did not think Mr Shann had a chronic pain syndrome. 
[15]
Mr Shann then made his second claim, for “several injuries since 1982, all lodged previously with ACC”. This claim was lodged on 27 September 2006. When asked for clarification, Mr Shann's GP, who submitted the claim on his behalf, advised that the claim related in fact to the 1996 injury. ACC advised Mr Shann that there was no new injury, and that therefore the claim was invalid as it duplicated other claims already lodged by Mr Shann and managed by ACC. 
[16]
Mr Shann sought review of both of those decisions of ACC. The reviewer upheld ACC's decision 
[17]
Dissatisfied, Mr Shann appealed to the District Court. The appeal was heard by Judge Ongley. The substantive issue before Judge Ongley was Mr Shann's claim that his back injuries were the initial cause of the disc degenerative disease. The Judge considered that to be a feasible proposition, but the evidence did not show it to be probable. He observed that the possible degenerative disease related causes are so well known that there can be no assumption of an accident cause without reasonably cogent evidence to support a conclusion of probable injury by accident: Judge Ongley held: 
“The clear probability is that the appellant had an underlying disease-related degenerative spinal condition which is common in the population. His spine was susceptible to damage and, in one or more minor incidents, he experienced soft tissue damage causing pain. The pain began to resolve but was exacerbated by further minor trauma. The effective cause of the recurring pain was the underlying condition of the spine. The position now is that the pain is probably caused wholly or substantially by the underlying degenerative condition. ”
[18]
The appeal was dismissed. 
[19]
A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court (s 162). Mr Shann sought such leave, but his application was declined by Judge Cadenhead, who concluded that what was in fact being sought was the re-litigation of factual issues that should have been raised in the review proceedings or in the appeal before Judge Ongley. Judge Cadenhead was unable to isolate any legal issue that could properly be considered by the High Court but suggested to Mr Shann that, if he did have new evidence, he should endeavour to obtain a fresh decision from ACC. 
[20]
That refusal of leave formed the basis of this application for special leave to appeal. 
Grounds for special leave 
[21]
Mr Shann's original application was accepted on the basis he would file an amended application that was in compliance with the High Court Rules. After some administrative difficulty, an amended application was received by the Court and the matter was set down for hearing. 
[22]
In his amended application, Mr Shann said that special leave was “requested to contest the District Court appeal decisions of Judge Beattie (Decision No. 123/2004), Judge Ongley (Decision No. 171/207) and Judge Cadenhead (Decision No. 50/2008). All on the basis of ‘new medical evidence’ obtained, (which they themselves pointed out was needed) which shows their decisions to be erred”
[23]
Mr Shann provided this Court with a considerable amount of evidential material in support of his application. 
[24]
Prior to the hearing, he provided six folders of documentation, covering various aspects of his case, including his interactions with ACC and the District Court over time and the “new evidence” he had referred to. During the hearing, he provided further material to the Court. After the hearing, he provided another bundle of materials. 
[25]
Based on my review of those materials, it would appear that the new medical evidence on which Mr Shann places particular reliance includes: 
a)
some three pages of 1982 medical notes relating to his accident in that year which he had not previously had available to him, and which were clearly not before Judge Ongley; 
b)
a letter of 17 April 2007 from Denise Brown, a chiropractor, it not being clear to me whether that letter was placed before Judge Ongley; 
c)
various material that would appear to have been previously available, but that Mr Shann asserts now needs to be reassessed, including: 
i)
Mr Robertson's August 2006 report; 
ii)
reports written in 2003 by Ms Brown; 
iii)
a 2004 blood test; and 
iv)
a chiropractic scan from June 2006, and explanatory notes relating thereto. 
[26]
Mr Shann also included material downloaded from the Internet, which he wished to have considered. 
[27]
In his closing remarks, Mr Shann made it clear to me that he was, in reality, seeking a reconsideration of all the evidence that related to his case. 
[28]
There is, therefore, no doubt in my mind that Mr Shann does want this Court to undertake a substantive reconsideration of the cause of his chronic back pain, and of ACC's decisions on that issue. That is clearly, in and of itself, not a reason for a grant of special leave. 
[29]
Quite properly, Mr Castle for ACC pointed out that Mr Shann's application was, by definition, limited to being an application for special leave to appeal to this Court from the decision of Judge Ongley, on a stated point or points of law. Mr Castle further submitted that it was not clear what that point or those points of law were. I agree with that submission. 
[30]
I have, however, given the question of whether Mr Shann's application does raise a relevant point of law careful consideration. I recognise that Mr Shann was acting for himself and that the Court needed to consider his application in that light, whilst at the same time acknowledging the essential validity of Mr Castle's submission. 
[31]
I consider that Mr Shann essentially raises two issues in the various iterations of this application for special leave (18 March 2008, 18 April 2008 and as presented at the hearing) he has produced. 
[32]
The first relates to the way ACC, the reviewer, and subsequently Judge Ongley, treated the “new” material Mr Shann submitted. 
[33]
In his amended application, Mr Shann set out the following propositions under the heading “Issue of law”
“10.
Section 134 of ACC legislation allows me to apply for a review over the declined issue of ‘new medical evidence’
11.
ACC have declined to use section 65 to admit they have made an error. 
12.
Mr Carter had no jurisdiction (according to ACC) over issue of ‘6 pages of new medical evidence’ presented to him but not seen by Judge Beattie. 
13.
Judge Ongley erred in his 2007 District Court decision with his apparent failure to take into consideration the 10 pages of ‘new medical evidence’ presented to him, which had not been seen by Judge Beattie. 
14.
Judge Cadenhead also apparently erred in his decision by failing to consider the weight of the 15 pages of new medical evidence presented for Leave to Appeal to the High Court. 
15.
Jurisdiction is required of High Court to consider ‘weight of probability’ of all of the ‘50 pages of new medical evidence’ not seen by Judge Beattie, Judge Ongley and Judge Cadenhead. 
16.
I also request for the issue of ‘medical misadventure/treatment injury’ to be considered in this had Appeal, a decline has been officially issued over this issue, but as Judge Cadenhead pointed out it is a connecting factor reliant on Judge Beatties 2004 decision being overturned. 
17.
There is the hindering ‘issue of estoppel’ (24) Judge Ongleys 2007 Appeal, but as clearly shown in Pg 2 of ‘decline letters’, Scott Saddler from ACC opened this issue of ‘causation’ with ‘new medical evidence’, I am just trying to close it with truth and justice. ”
[34]
In those submissions, Mr Shann appears to raise two principal concerns: 
a)
As to material which Judge Ongley apparently failed to consider, and material Judge Cadenhead did not consider; and 
b)
As to the approach taken by the ACC reviewer, in terms of ACC having declined to exercise its power under s 65 to alter its decision in light of the material Mr Shann provided to ACC. 
[35]
As regards Mr Shann's proposition that Judge Ongley erred with this “apparent” failure to take into consideration the ten pages of “new medical evidence” presented to him, I am not persuaded that there is any point of law appropriate for a grant of special leave. 
[36]
I accept that the Judge may not have explicitly referred in his decision to all the material that was made available to him by Mr Shann. On the other hand, I think it can be inferred from his judgment that he did consider Mr Shann's substantive complaint as to the cause of his current condition on the basis of the evidence before him. The Judge acknowledged, at [26], that the central point of Mr Shann's submissions was that his degenerative spine disease was caused by injuries in the first place. Further, the Judge, having referred to some of the technical difficulties facing Mr Shann's appeal, went on to analyse that issue as follows: 
“[35]
Stripped of technical problems, the appellant's claim is brought on two grounds, either that the effect of the 1996 injuries did not resolve and caused chronic pain, and secondly that the underlying degenerative condition, or a significant part of it, was caused by personal injury by accident in the first place. 
[36]
Those are feasible possibilities. But the evidence does not show them to be probable. The 1982 injury has been recorded as a claim for ‘contusion including crushing’. There is no record of spinal or musculoskeletal complications. Mr Robertson considered the sparse information that remains and could not conclude that the accident had probably precipitated spinal degeneration. In this area of compensation the possible degenerative disease related causes are so well known that there can be no assumption of an accident cause without reasonably cogent evidence to support a conclusion of probable injury by accident. Furthermore, retrospective evidence needs to be critically examined and cannot easily be accepted on the basis of recollection by a claimant of something that happened many years before which could have caused underlying damage. 
[37]
The clear probability is that the appellant had an underlying disease-related degenerative spinal condition which is common in the population. His spine was susceptible to damage and, in one or more minor incidents, he experienced soft tissue damage causing pain. The pain began to resolve but was exacerbated by further minor trauma. The effective cause of the recurring pain was the underlying condition of the spine. The position now is that the pain is probably caused wholly or substantially by the underlying degenerative condition. 
[38]
For those reasons the appeal is dismissed. ”
[37]
On the basis of those comments, I think it is apparent that Judge Ongley did take new evidence presented by Mr Shann into account. That Judge Ongley may not have explicitly referred to all of it, and that he did not agree with the conclusions Mr Shann wished him to draw from it, is quite a different matter. It is, as it has been said many times, not necessary for a Judge to refer explicitly to all evidence before him. 
[38]
As regards Judge Cadenhead failing to consider new evidence provided to him on the hearing of Mr Shann's leave application, it is clear that a leave application does not require a substantive consideration of new material. As Judge Cadenhead noted, he carefully considered Mr Shann's submissions to him. He advised Mr Shann, if he did have new evidence, to present it to ACC. 
[39]
Finally on these issues, Mr Shann also referred to the difficulty he faced in that the ACC reviewer had said there was “no reviewable decision” for him to consider. Again, with reference to those elements of Judge Ongley's decision that I have just referred to, I consider that if the reviewer did make an error as regards whether or not ACC had made a reviewable decision, the approach taken by Judge Ongley, in considering the substance of Mr Shann's claim, addressed that error. 
[40]
I have also considered, in light of the Kenyon principles, whether this Court should itself consider Mr Shann's asserted “overwhelming new evidence”. Of those principles the one that is most likely to assist Mr Shann is that there is an “extraordinary factor which has not been properly taken into account”, that extraordinary factor here being the alleged “overwhelming new evidence”. It is usual procedure to consider argument concerning the merits of the appeal itself in order to determine whether or not special leave should be granted (McVeagh v ARCIC [2000] NZAR 1Has Litigation History which is not known to be negative[Blue] ). 
[41]
The new evidence identified by Mr Shann before this Court all goes to refuting previous factual findings as to the cause of his back pain. It does not assist in identification or explanation of an alleged error of law. The evidence is clearly intended to enable the re-litigation of factual matters that have already been considered on numerous occasions. 
[42]
Judges Beattie and Ongley have each considered Mr Shann's medical history in detail. In light of that consideration, I am not persuaded that the new medical evidence on which Mr Shann appears to place particular reliance (see [25]) is so “compelling” as to satisfy the grounds upon which this Court should consider it in an appeal by way of special leave. 
[43]
The obviously new material, the 1982 medical notes, are not themselves compelling as regards causation of Mr Shann's back injuries. They refer to Mr Shann as a fit 22 year old, having slipped down a bank grazing the upper lateral aspect of his right thigh and lacerating his right foot that overnight developed swelling which became tense and tender in his right thigh. There does not appear to be any reference to back pain or back injury in this material. 
[44]
Whilst Denise Brown, the chiropractor, does express a view supportive of Mr Shann as to the causation of his back condition, I do not consider that opinion in and of itself sufficiently compelling to require consideration by this Court of the matter in the manner contended for by Mr Shann. There is, as the previous decisions show, a large body of material which supports the decisions ACC has made. 
[45]
Other material would appear to have already been considered, and what Mr Shann is looking for is a reconsideration of that material. 
[46]
A brief review of the medical articles included in Mr Shann's application does not suggest there to have been a sudden change of medical opinion in this area. At best, the articles indicate that some with knowledge in the area express doubt as to whether degenerative disc disease is causative of pain in every case. It is apparent from the earlier judgments that the possibility that the injuries, rather than degenerative disc disease, were causative of the pain was considered by the experts but, in Mr Shann's particular case, discounted. I also note that material Mr Shann referred to concerning recent District Court judgments, relates to decisions made upon the facts of individual cases and is of little help to Mr Shann. 
[47]
Therefore, I do not consider that the issue of new evidence provides a basis on which a grant of special leave would be appropriate. 
[48]
The second issue Mr Shann identifies is as to the test of causation to be applied in the context of his 1982 injury. 
[49]
In his application filed on 18 April 2008, Mr Shann submitted: 
“I furthermore submit to this court, that Judge Ongley has erred in his use of the words ‘wholly or substantially’, my ‘original injury’ in this case comes under the 1992 ACC legislation where the issue is ‘casual connection’, not ‘wholly or substantially’. ”
[50]
In his application filed on 18 April 2008, Mr Shann submitted: 
“I furthermore submit to this Court, that Judge Ongley has erred in his use of the words ‘wholly or substantially’, my ‘original injury’ in this case comes under the 1992 ACC legislation where the issue is causal connection, not ‘wholly or substantially’. ”
[51]
Viewed in isolation, that proposition is incorrect. The Accident Rehabilitation and Compensation Insurance Act 1992 provides that personal injury “caused wholly or substantially by a gradual process, disease or infection” is not covered by the Act (s 10). To the extent that Mr Shann submits the relevant injury for causation purposes is that suffered in 1996, he raises no error of law in Judge Ongley's decision. 
[52]
If, however, Mr Shann's application is viewed in the round, it may be that the error of law he intended to raise was that his 1982 injury was a relevant injury for causation purposes and that Judge Ongley therefore erred in not applying the 1972 legislation and its different test for causation. 
[53]
Mr Castle acknowledged this possibility in his submissions. He accepted that, pursuant to the Accident Compensation Act 1971, Mr Shann would be covered for the mental and physical consequences of that injury, but not for damage caused exclusively by disease, infection or the ageing process (s 2). Mr Castle submitted, however, that even if this was the case and Judge Ongley erred, Mr Shann would have no reasonable prospect of success under the 1972 legislation. 
[54]
I agree. At [36] of his decision Judge Ongley effectively excluded the possibility that the 1982 injury might be causative of Mr Shann's recurring pain. He referred to the fact that Mr Robertson was unable to conclude that the 1982 accident had probably precipitated spinal degeneration. He stated that in this area of compensation the possible degenerative disease related causes are so well known that there can be no assumption of an accident cause without reasonably cogent evidence. It was a feasible possibility but impossible to prove. 
[55]
Based on those factual findings, it appears highly unlikely that, even if Mr Shann's contention is correct, he would be able to establish that his recurring pain (or its apparent cause, the degenerative disc disease) was “caused in some degree” (Cochrane v ACC HC WN 2 June 2004 Miller J) by the 1982 injury. There was insufficient evidence before Judge Ongley to establish such a proposition 
[56]
I do not consider, therefore, that this issue satisfies the requirements for special leave to be granted. 
[57]
Mr Shann's application for special leave is therefore declined. 
[58]
It appears generally accepted that Mr Shann does suffer from recurring back pain. The diagnostic difficulties associated with such conditions are well known. Mr Shann is unwilling to accept the suspension of his entitlements. He has this year made two further applications to ACC for reinstatement, one on the basis of new medical evidence, and the other for treatment injury. The material before me indicates ACC has already refused to accept those claims and Mr Shann has lodged review applications. Those reviews are to be held later this month. 
[59]
As regards those reviews, although this Court did not consider Mr Shann's new evidence sufficient to form the basis of a grant of special leave, ACC, and any reviewer should, nevertheless, consider any such evidence with an open mind. 
[60]
I make one final comment. In appearing for himself, Mr Shann acted with considerable restraint and dignity, and with appropriate — but not unduly deferential — respect for the Court. From my review of the papers put before me, it is clear that Mr Shann has not always treated ACC, and in particular its officials, similarly. I would urge him to. 
[61]
There will be no order for costs. 

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