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Accident Compensation Cases

Howard v Accident Compensation Corporation (HC, 03/10/14)

Judgment Text

JUDGMENT OF CLIFFORD J 
Clifford J
Introduction 
[1]
This is an application by the Accident Compensation Corporation (ACC) to strike out the applicant's, Maree Howard's, statement of claim. 
[2]
In these judicial review proceedings Mrs Howard seeks to set aside an 18 October 2010 notice issued by her accredited employer, NZ Post Ltd, which required her to attend a medical assessment, under s 72 of the Accident Compensation Act 2001 (the s 72 notice). Mrs Howard's challenge, however, primarily focuses on ACC's failure to properly investigate what is said to be NZ Post's lack of timely decision on two treatment entitlement claims lodged prior to the issuance of the s 72 notice on 1 March and 30 March 2010.1
| X |Footnote: 1
Mrs Howard's statement of claim records these dates as 8 March and 30 March 2010 but subsequently refers to the relevant dates as 1 March 2010 and 30 March 2010. 
 
[3]
ACC applies to strike out Mrs Howard's statement of claim on the basis that she has previously challenged the s 72 notice and the effects on her entitlement, and that her complaint was finally dismissed. ACC argues that her current claim is therefore an abuse of process and cannot properly be advanced.2
| X |Footnote: 2
ACC also initially advanced an argument that the statement of claim did not disclose a reasonably arguable cause of action; is likely to cause prejudice; and is frivolous and vexatious. These were not pursued in submissions. 
 
Background 
[4]
Mrs Howard was employed by NZ Post Ltd. She suffered a spinal injury in 2006 and a further aggravation of that injury in 2007. She suffered pain and limitations and was unable to work. She was granted cover for both injuries under the Accident Compensation Act. NZ Post was an accredited employer under the Accident Compensation Act and its work accident claims were managed by Care Advantage Ltd. Care Advantage managed Mrs Howard's entitlements until the cover was assigned to ACC in March 2011. In 2010 issues between Mrs Howard and Care Advantage came to a head. 
[5]
On 1 March 2010, Mrs Howard's doctor, Dr Paul requested approval for Mrs Howard to engage in a pain management programme involving physiotherapy. Mrs Howard describes this request as the lodging of a treatment provider claim pursuant to ss 48 and 49 of the Accident Compensation Act which provide: 
“48
Person to lodge claim for cover and entitlement 
A person who wishes to claim under this Act must lodge a claim with the Corporation for— 
(a)
cover for his or her personal injury; or 
(b)
cover, and a specified entitlement, for his or her personal injury; or 
(c)
a specified entitlement for his or her personal injury, once the Corporation has accepted the person has cover for the personal injury. ”
“49
Treatment provider lodging claim on behalf of person 
A treatment provider lodging a claim under section 48 on behalf of a person must lodge the claim promptly with the Corporation after the person has authorised its being lodged. ”
[6]
On 8 March 2010 Care Advantage emailed Mrs Howard requesting that she be reviewed by an occupational physician, Dr Monigatti, before a pain management plan was implemented. 
[7]
There had earlier been a request for Mrs Howard to participate in a Training for Independence programme. On 17 March 2010 Mrs Howard sought a decision on her participation in a Training for Independence programme. Care Advantage responded noting that the question of a Training for Independence programme had been discussed with Mrs Howard in the previous year and it had been agreed that such an intense programme was not necessary, particularly given the difficulties Mrs Howard would have in attending as she lived in a remote location. Care Advantage later asked for discussion and confirmation that Mrs Howard was able and wanted to participate in the programme and noted that the issue would be parked in the meanwhile. 
[8]
On 30 March 2010 Dr Paul wrote to Care Advantage seeking physiotherapy and acupuncture treatment for Mrs Howard. In that letter, Dr Paul also wrote of Mrs Howard's concern that if she refused to accept assessment by Dr Monigatti, her weekly compensation could be suspended. Dr Paul suggested that the opinion of Mr Cowley, an orthopaedic surgeon be obtained rather than that of the occupational specialist, Dr Monigatti. Dr Paul viewed an occupational specialist's assessment as redundant given that no jobs were medically suited for Mrs Howard. Mrs Howard characterises this as the lodging of a treatment claim pursuant to ss 48 and 49 of the Accident Compensation Act for orthopaedic surgeon assessment and treatment. Dr Paul also noted that Mrs Howard was awaiting a formal decision on the Training for Independence programme. 
[9]
Care Advantage declined to refer Mrs Howard to Mr Cowley until an opinion was obtained from an occupational specialist. Mrs Howard continued to object to the suitability of Dr Monigatti and in August 2010, Dr Monigatti withdrew due to those difficulties. 
[10]
A Care Advantage internal review document dated 11 October 2010 demonstrates the ongoing stalemate that resulted:3
| X |Footnote: 3
Cited at [13] of Howard v Accident Compensation Corporation [2012] NZACC 73
 
“In regard to the more recent requests for Physiotherapy/Acupuncture treatments, it was explained to Mrs Howard that we would like a specialist to review any further treatment recommendations given that previous physiotherapy had done little to increase Mrs Howard's independence or reduce her pain levels to date. 
Care Advantage has been attempting to have Mrs Howard attend a specialist appointment since February 2010, to date this has not been achieved due to various delays. Therefore Care Advantage have not issued a decision and will not be issuing any decision on this request until we have had the specialist review to determine the most appropriate treatment for Mrs Howard. ”
[11]
On 18 October 2010 Care Advantage required Mrs Howard to attend an appointment with the occupational specialist, Dr Kenny, pursuant to s 72 of the Accident Compensation Act which provides: 
“72
Responsibilities of claimant who receives entitlement 
(1)
A claimant who receives any entitlement must, when reasonably required to do so by the Corporation,— 
(a)
give the Corporation a certificate by a registered health professional or treatment provider that deals with the matters and contains the information that the Corporation requires: 
(b)
give the Corporation any other relevant information that the Corporation requires: 
(c)
authorise the Corporation to obtain medical and other records that are or may be relevant to the claim: 
(d)
undergo assessment by a registered health professional specified by the Corporation, at the Corporation's expense: 
(e)
undergo assessment, at the Corporation's expense: 
(f)
co-operate with the Corporation in the development and implementation of an individual rehabilitation plan: 
(g)
undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the Corporation's expense: 
(h)
participate in rehabilitation. 
(2)
Every such claimant must give the Corporation a statement in writing about any matters relating to the claimant's entitlement, or continuing entitlement, to an entitlement that the Corporation specifies, and must do so whenever the Corporation requires such a statement. 
(3)
If the Corporation requires the claimant to do so, the claimant must make the statement referred to in subsection (2) as a statutory declaration or in a form supplied by the Corporation. ”
[12]
That assessment was scheduled for 5 November 2010. When Mr and Mrs Howard arrived at the appointment they expressed concern about Dr Kenny's scope of practice and suitability to conduct the assessment. The appointment was aborted. Subsequently on 10 or 11 November 2010 Care Advantage suspended Mrs Howard's entitlements pursuant to s 117(3) of the Accident Compensation Act on the basis that Mrs Howard had unreasonably refused to undertake an assessment by Dr Kenny as required by the s 72 notice. Section 117(3) of the Accident Compensation Act provides: 
“117
Corporation may suspend, cancel, or decline entitlements 
 
(3)
The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to— 
(a)
comply with any requirement of this Act relating to the claimant's claim; or 
(b)
undergo medical or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or 
(c)
agree to, or comply with, an individual rehabilitation plan. ”
[13]
A series of review, appeal and recall decisions then followed. These involved: 
(a)
An application to review Care Advantage's deferral of a decision on Mrs Howard's treatment claims until it had more information from an assessment conducted by Dr Monigatti; and an application to review Care Advantage's notification, in a letter, that it declined to arrange an appointment with Mr Cowley but would review this once Mrs Howard had attended the occupational assessment with Dr Monigatti. The Reviewer affirmed the decision to defer a decision on the treatment claims but declined jurisdiction on the question of the letter, as the letter was not a reviewable decision. 
(b)
An appeal of the Reviewer's decision to the District Court. Judge Ongley dismissed the appeal and upheld the Reviewer's decision that it was reasonable to defer the decision while dealing with the question of assessment for rehabilitation, and that the letter was not a decision.4 
(c)
An application to review the decision to suspend Mrs Howard's entitlements, brought under s 134 of the Accident Compensation Act. The Reviewer affirmed the decision. It was reasonable to require Mrs Howard to attend an assessment by an occupational physician and it was reasonable to suspend Mrs Howard's entitlements pursuant to s 117(3) as she had unreasonably failed to permit the examination and assessment by Dr Kenny as reasonably required by a notice issued under s 72 of the Accident Compensation Act. 
(d)
An appeal of the Reviewer's decision to the District Court under s 149. Judge Ongley dismissed the appeal.5
| X |Footnote: 5
Howard v Accident Compensation Corporation [2012] NZACC 218Has Litigation History which is not known to be negative[Blue] 
The Reviewer's decision was confirmed. 
(e)
An application to the District Court under s 162(1) for leave to appeal to the High Court. Judge Joyce QC declined leave to appeal.6
| X |Footnote: 6
Howard v Accident Compensation Corporation [2012] NZACC 313
 
(f)
An application to the High Court under s 162(3) for special leave to appeal to the High Court. Justice Williams declined leave to appeal.7
| X |Footnote: 7
 
(g)
An application to the High Court under s 163(1) for leave to appeal to the Court of Appeal against the dismissal of the application for special leave. Justice Williams dismissed the application.8
| X |Footnote: 8
Howard v Accident Compensation Corporation [2013] NZHC 1004Has Litigation History which is not known to be negative[Blue] 
 
(h)
An application to the Court of Appeal for special leave to appeal under s 163(1). The appeal was dismissed for want of jurisdiction but the Court went on to hold that William's J's conclusion that the proposed appeal raised no legal question of the requisite standard was inevitable and that leave would have been refused in any event.9
| X |Footnote: 9
 
(i)
An application to the Supreme Court for leave to appeal. The Registrar dismissed the application for want of jurisdiction. 
(j)
An application to the Supreme Court to review the Registrar's decision. The Registrar's decision was confirmed by McGrath J in a letter dated 14 February 2014. 
(k)
An application to the Supreme Court to revoke the Registrar's decision under s 28(3) of the Supreme Court Act 2003. In a judgment of the Court, the application was dismissed as there is no right of appeal to the Supreme Court on an application for leave to appeal.10
| X |Footnote: 10
 
Strike out principles 
[14]
A statement of claim may be struck out pursuant to r 15.1 of the High Court Rules if it is “otherwise an abuse of the process of the court”. The onus is on the party alleging abuse of process to show that the proceeding was brought for an improper purpose and it is “a heavy one”.11
| X |Footnote: 11
Deliu v Hong [2013] NZHC 735Has Litigation History which is not known to be negative[Blue]  at [189], citing Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231Has Litigation History which is not known to be negative[Blue] 
In Wilkins v Housing New Zealand Corporation Andrews J usefully summarised the principles behind and appropriate use of this ground:12
| X |Footnote: 12
Wilkins v Housing New Zealand Corp [2014] NZHC 507Has Litigation History which is not known to be negative[Blue]  (footnotes omitted). 
 
“[15]
Regarding striking out a statement of claim on the ground that it is otherwise an abuse of process (r 15.1(d)), the Court of Appeal in Commissioner of Inland Revenue v Chesterfields Preschools Ltd observed that this ground is intended to prevent the improper use of the Court's machinery. It extends beyond the grounds set out in r 15.1(b) (‘likely to cause prejudice or delay’) and r 15.1(c) (‘is frivolous or vexatious’). The ground of being ‘otherwise an abuse of process of the Court’ captures all other instances of misuse of the Court's processes, such as a proceeding that has been brought with an improper motive or is an attempt to obtain a collateral benefit. The Court in Chesterfields also noted that the power to strike out on this ground is to be used properly and for bona fide purposes and if a defect in the pleadings can be cured, then the Court would normally order an amendment of the statement of claim. 
[16]
The considerations applying to strike out applications in the context of a proceeding seeking a judicial review are no different from those applied in ordinary proceedings. ”
[15]
Relevant to this application, it has been held that it is an abuse of process to: 
(a)
attempt to relitigate matters that have already been finally determined;13
| X |Footnote: 13
Ongley v Brdjanovic [1975] 2 NZLR 242 (SC)Has Cases Citing which are not known to be negative[Green] ; Kontvanis v O'Brien [1958] NZLR 502 (SC)Has Cases Citing which are not known to be negative[Green]  at 505; Otis Elevator Co Ltd v Linnell Builders Ltd (1991) 5 PRNZ 72Has Cases Citing which are not known to be negative[Green] ; Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC)Has Litigation History which is not known to be negative[Blue] ; McLachlan v Vector Ltd CA 157/05, 28 February 2006; Reid v Attorney-General HC Wellington CIV-2002-485-874, 26 June 2003 at [21]; Fraser v Robertson [1991] 3 NZLR 247 (CA)
and 
(b)
raise issues for the first time in a new proceeding when the same issues were so clearly part of the subject matter of earlier litigation that they could and ought to have been raised then.14
| X |Footnote: 14
Fraser v Robertson, above n 13. 
 
[16]
In Johnson v Gore Wood & Co (a firm) Lord Bingham made the following observations, which have been cited with approval by the Supreme Court and Court of Appeal:15
| X |Footnote: 15
Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (HL)Has Cases Citing which are not known to be negative[Green]  (emphasis added) cited with approval in Commissioner of Inland Revenue v Bhanabhai [2007] 2 NZLR 478 (CA)Has Litigation History which is not known to be negative[Blue]  at [58]-[60]; see also Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at [59]; Contact Energy Ltd v Attorney-General [2009] NZCA 351Has Litigation History which is not known to be negative[Blue] ; Rabson v Attorney-General [2013] NZHC 1018, [2013] NZFLR 622Has Litigation History which is not known to be negative[Blue] 
 
“But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. ”
[17]
The more specific concept of issue estoppel was described in Joseph Lynch Land Co Ltd v Lynch as follows:16
| X |Footnote: 16
Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 (CA)Has Litigation History which is not known to be negative[Blue]  at 40-41. 
 
“The expression ‘res judicata’ means the matter has been adjudicated. The concept of res judicata is often applied to both cause of action estoppel and issue estoppel. Traditionally its use was confined to the former. Cause of action estoppel is different from issue estoppel which can arise where a plea of res judicata in the strict sense is not open because the causes of action are not the same: see 16 Halsbury's Laws of England (4th ed, reissue) (Estoppel) at para 977. Cause of action estoppel is more precise than issue estoppel. For there to be cause of action estoppel the cause of action sought to be estopped must be precisely the same as that upon which there has been an earlier adjudication. 
Issue estoppel is concerned with the prior resolution of issues rather than causes of action. In the same paragraph of Halsbury as that referred to above, it is said that issue estoppel precludes a party from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him. Cross on Evidence (4th NZ ed, 1989) by Mathieson discusses issue estoppel at para 12.8 on p 315. The learned author cites the judgment of Lord Denning MR in Fidelitas Shipping Co Ltd v V/O Exportchleb [1965] 2 All ER 4Has Cases Citing which are not known to be negative[Green] , 9: 
‘ … within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. ’”
[18]
As these passages emphasise, a close consideration of the facts is necessary as related but distinct claims are not an abuse and may proceed.17
| X |Footnote: 17
Hudson v Thomson HC Dunedin CP 31/97, 19 December 1997, applying Henderson v Henderson (1843) 3 Hare 100, 67 ER 313Has Cases Citing which are not known to be negative[Green] . See also Crompton v Turner [1994] 2 NZLR 489 (HC)Has Litigation History which is not known to be negative[Blue] 
Where the second proceeding is of a different nature or where specific issues are to be considered again in a different context and in the light of different considerations, the proceeding is not an abuse of process.18
| X |Footnote: 18
Walker v Wilson HC Auckland CP198/00, 16 April 2002, applying Arthur J S Hall and Co v Simons [2000] 3 All ER 673 (HL)Has Cases Citing which are not known to be negative[Green] 
 
Submissions 
[19]
ACC argues that the validity of the s 72 notice has previously been raised and determined against Mrs Howard. An issue estoppel applies to prevent revisitation of that issue and, more broadly, any decision by the High Court on Mrs Howard's application “would inevitably involve itself in an assessment of the merits of the judgements and decisions” of the District Court and “it is an abuse of process to commence a further proceeding which collaterally attacks those decisions”.19
| X |Footnote: 19
Wilkins v Housing New Zealand Corporation, above n 12. 
Even if Mrs Howard identifies different arguments here, this cannot assist her as she ought to have raised those arguments earlier.20
| X |Footnote: 20
Fraser v Robertson [1991] 3 NZLR 257 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] ; McGaveston v NZ Permanent Trustees Ltd CA 23/02, 11 December 2002; Realtycare Corporation v Cooper (1989) 2 PRNZ 426Has Cases Citing which are not known to be negative[Green] 
 
[20]
Additionally, s 133(5) of the Accident Compensation Act proscribes any proceedings, other than under the statutory process in relation to a claim under the Act, where a right of review exists in relation to such a matter. The claim in this case was for entitlements. There are rights of review and appeal, and those rights were exercised. Therefore, as s 133(5) provides, “no court … may consider or grant remedies in relation to that matter”. It is immaterial that any particular component part of the claim might itself have not been reviewable as “in relation to” is a phrase of extremely broad import,21
| X |Footnote: 21
BDM Grange Ltd v Parker [2006] 1 NZLR 353Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at [41]. 
and in this case, rights of review and appeal were exercised in relation to the s 72 notice. The scheme of the Accident Compensation Act is clear that all matters that can be the subject of the statutory dispute resolution process must be. Here, having exhausted that process, Ms Howard is seeking to obtain a different result by way of judicial review. 
[21]
Mrs Howard argues that she was not challenging and was not able to challenge the s 72 notice of assessment in the prior proceedings as the District Court has long held that a s 72 notice is not a “decision” in terms of s 7 of the Accident Compensation Act. Accordingly, there is no right of review or appeal.22
| X |Footnote: 22
See for example Splite v Accident Compensation Corporation [2013] NZACC 129 (DC)
The reasonableness of the s 72 notice is however amenable to judicial review.23
| X |Footnote: 23
McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733Has Litigation History which is not known to be negative[Blue] 
The earlier proceedings did not challenge the s 72 notice but rather challenged the suspension of entitlements decision issued under s 117(3) of the Act on 11 November 2010. 
[22]
Mrs Howard submits the central issue is that her treatment provider claims of 1 March 2010 and 30 March 2010 were not processed and no statutory decisions under s 64 were issued in relation to them. At the time that claims are lodged, s 54 becomes engaged to require a decision on reasonable grounds and in a timely manner. To similar effect are cl 13.1(a) of the Framework for the Accredited Employers Programme, which requires NZ Post to promptly process claims, and the Code of ACC Claimants' rights which requires ACC to uphold Mrs Howard's rights and treat her fairly. The March 2010 claims have never been substantively scrutinised and determined under the statutory process because decisions were not issued to enable that to occur. Judicial review is available for the Court to ensure the legislative condition of issuing a statutory decision in a timely manner was fulfilled.24
| X |Footnote: 24
McGrath v Accident Compensation Corporation [2011] NZSC 77, [2011] 3 NZLR 733Has Litigation History which is not known to be negative[Blue] 
 
Analysis 
[23]
There are two aspects to Mrs Howard's statement of claim: a challenge to the s 72 notice; and a challenge to the lack of decision on two March 2010 treatment claims. I will consider in turn whether each aspect is an abuse of process. 
[24]
First, the validity of the s 72 notice was squarely in issue in Mrs Howard's previous proceedings. As the Reviewer and Judge Ongley recognised, it was necessary to determine whether the s 72 notice was reasonable to determine whether it was reasonable to suspend Mrs Howard's entitlements under s 117(3). Section 117(3) requires that a claimant has unreasonably refused or unreasonably failed to comply with a requirement of the Act (here, the s 72 notice). It could only be unreasonable to refuse or fail to permit the examination or assessment if it was reasonable to require Mrs Howard to undergo the assessment in the first place. 
[25]
Judge Ongley expressly considered this issue and decided:25
| X |Footnote: 25
Howard v Accident Compensation Corporation, above n 5, at [41]. 
 
“It was reasonable to require the [Plaintiff] to attend for assessment by an occupational physician. The grounds raised by the [Plaintiff] do not make out a case for a reasonable refusal to engage in the assessment. … I am satisfied that the [Plaintiff] unreasonably refused to engage in the assessment, and further that the [Defendant's] decision to suspend entitlement was justified and reasonable. ”
[26]
Mrs Howard then sought leave to appeal from the District Court, as well as special leave to appeal from the High Court and the Court of Appeal on grounds which included:26
| X |Footnote: 26
Howard v Accident Compensation Corporation, above n 9, at [10]; Howard v Accident Compensation Corporation [2012] NZACC 388; Howard v Accident Compensation Corporation, above n 7, at [28]. 
 
“Whether, in light of the evidence before him, the [District Court] Judge correctly interpreted and applied the ‘when reasonably required’ test in s 72 of the Act. ”
[27]
In these circumstances, it is irrelevant whether Mrs Howard could challenge the s 72 notice under the disputes procedure in the Act, or whether the issuing of a s 72 notice, not being a decision, can only be challenged in judicial review proceedings. The essential fact here is that the issue of the reasonableness of the s 72 notice was raised and determined and Mrs Howard was refused leave to appeal on the issue. Accordingly, it would be an abuse of process to allow Mrs Howard to “fight that issue all over again”
[28]
The second aspect of Mrs Howard's statement of claim challenges the failure to issue decisions on her treatment claims of 1 March and 30 March 2010. There was no express determination of this issue in the earlier proceedings. Nevertheless, I consider that to allow Mrs Howard to challenge this failure now would be an abuse of process as the claims were clearly part of the subject of the earlier litigation, and could have been subject to review or appeal under the Accident Compensation Act. 
[29]
Mrs Howard sought review of the delay in processing her “treatment claims”. The Reviewer held that it was not unreasonable to require Mrs Howard to undergo assessment before determining those claims and accordingly that: 
“Care Advantage has not unreasonably delayed in processing her claim for entitlement to Training for Independence Programme and funding for fortnightly physiotherapy and acupuncture treatment. ”
[30]
The treatment claim to which this decision relates is not precisely clear. On appeal, Judge Ongley said he “had a good deal of difficulty understanding what this appeal is about” given Mr Howard's focus on incidental matters of administration, but that he would reach the same conclusion as the Reviewer did. Care Advantage “reasonably decided that an assessment from Dr Monigatti was a proper basis to obtain relevant information for decisions concerning the Training programme and other rehabilitation measures”.27
| X |Footnote: 27
Howard v Accident Compensation Corporation, above n 4, at [27]. 
 
[31]
Mrs Howard also challenged Care Advantage's deferral of a decision on an appointment with Mr Cowley that was notified in a letter of 23 July 2010. That challenge has significant overlap with Mrs Howard's claim, now, in relation to the 30 March 2010 treatment claim as it too focussed on Mrs Howard's attempt to be seen by Mr Cowley rather than Dr Kenny. The Reviewer and Judge Ongley declined jurisdiction in relation to this issue. 
[32]
The broad issue of Care Advantage's delay in issuing decisions on Mrs Howard's treatment claims was thus an issue on which both the Reviewer and Judge Ongley issued decisions. This is particularly significant as s 133(5) of the Accident Compensation Act provides: 
“If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides. ”
[33]
Furthermore, in seeking leave to appeal Judge Ongley's decision that Mrs Howard's weekly compensation was reasonably stopped, Mrs Howard appealed on grounds which included reference to the treatment claims she now seeks to challenge:28
| X |Footnote: 28
Howard v Accident Compensation Corporation, above n 7, at [19]. 
 
“Question 2: In the appellant's known medical circumstances did His Honour err in finding the respondent acted reasonably in requiring the appellant to attend for assessment by occupational physician Dr Kenny over the objective medical judgment and treatment claims lodged by the appellant's GP for a like-kind assessor such as orthopaedic surgeon Mr Cowley? ”

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