Beveridge v Accident Compensation Corporation - [2016] NZHC 511

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002223 [2016] NZHC 511

UNDER the Accident Compensation Act 2001

IN THE MATTER

of an appeal to the High Court pursuant to s 162 of the Act

BETWEEN

ADELE BEVERIDGE Applicant

AND

THE ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 9 March 2016

Appearances:

H Peart and P Schmidt for the Applicant
D Tuiqerqere for the Respondent

Judgment:

23 March 2016

JUDGMENT OF MUIR J

This judgment was delivered by me on Wednesday 23 March 2016 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:
H Peart, Schmidt & Peart Law, Onehunga
P Schmidt, Schmidt & Peart Law, Onehunga
D Tuiqereqere, Medico Law Limited, Grey Lynn

BEVERIDGE v ACC [2016] NZHC 511 [23 March 2016]

Introduction

[1] The appellant seeks the special leave of the High Court to appeal in respect of

the following two questions which she says raise “important issues of law”:

(1)whether the District Court applied the correct legal test for the payment of interest as discussed in the Court of Appeal decision of ACC v Miller;1

(2)whether Work and Income New Zealand (WINZ) benefit information is “necessary information” under the definition in s 114 of the Accident Compensation Act 2001 (the Act) in the circumstances of this case.

Background

[2] On 20 January 2005 Ms Beveridge sustained a back injury at her place of work. She applied for and received ACC cover. This included earnings related compensation, it being accepted that she was incapacitated as a consequence of her injury.

[3] On 15 February 2005 a bone density scan identified features including osteoporosis.

[4] On 18 October 2005 an occupational medical report by Drs Adams and Callaghan diagnosed conditions of osteoporosis, compression fractures of the T6 and L4 discs and Chronic Pain Syndrome affecting the lumbar spine region with some features of central neurosensitisation. The report stated:

Adele’s compression fractures have healed adequately, however, she has developed a chronic pain syndrome.

[5] On 5 December she was reviewed by Dr Percival whose file note records
“diagnosis of a chronic pain syndrome … no compression factures … osteoporosis specialist”.

1 ACC v Miller [2013] NZCA 141 at [47].

[6] On 9 December 2005 she was seen by endocrinologist Dr Bagg who stated the applicant did not suffer from any compression fractures. Dr Bagg confirmed that the applicant had osteoporosis, the aetiology and management of which is discussed in his report.

[7] Between May and August 2006 she was reviewed by occupational physician Dr Dryson who, following an MRI scan, concluded “the cause of the underlying pathology producing Adele’s back pain is not known”.

[8] On 5 December 2006 pain specialist Dr Laubscher reported that the

applicant’s lower back pain was:

… consistent with the demonstrated disc lesion at L5/S1 and there are neurogenic features … It is more likely that she has persistent nociceptive pain and associated central sensitisation, though nerve root irritation cannot be excluded.

[9] Internal advice from ACC’s branch…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 511
Decision Date: 23 March 2016

CaseChat Overview and Summary

Adele Beveridge appeals to the High Court against the decision of the District Court which dismissed her appeal against the Accident Compensation Corporation’s (ACC) refusal to pay her interest on overdue weekly compensation. The appeal raises two questions of law. First, whether the District Court applied the correct legal test for the payment of interest as discussed in the Court of Appeal decision of ACC v Miller. Second, whether Work and Income New Zealand (WINZ) benefit information is “necessary information” under the definition in s 114 of the Accident Compensation Act 2001 (the Act) in the circumstances of this case. In respect of the first question, the Court declines special leave to appeal. The Court finds that the District Court Judge’s conclusion that the case fell within Miller scenario 4 was reasonably open to her on the facts. In respect of the second question, the Court grants special leave and allows the appeal. The Court finds that the Corporation had all the necessary information at 29 July 2009 when it received the first report from Dr R D Wigley. With the benefit of hindsight the Corporation should have reinstated entitlements from July 2009 as it had the ability at that point to calculate the weekly compensation that Ms Beveridge was due. In that sense, it had all necessary information for the purposes of s 114.

Orders