Carter v Accident Compensation Corporation

[2015] NZHC 2692

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-602 [2015] NZHC 2692

UNDER

the Accident Compensation Act 2001

IN THE MATTER

of an application for special leave to appeal to the High Court on a question of law under s 162 of the Act

BETWEEN

JOHN HOWARD CARTER Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	8 October 2015
Counsel:	Appellant in Person A D Barnett for Respondent
Judgment:	30 October 2015

JUDGMENT OF CLIFFORD J

Introduction

[1]      Mr Carter applies for special leave to appeal a judgment of Judge Powell in the District Court at Wellington.1    In that decision the Judge declined Mr Carter’s appeal against a decision of the Corporation2  declining his claim for cover for an

acute myocardial infarction (heart attack) on 23 August 2012.

1      Carter v Accident Compensation Corporation [2014] NZACC 157.   Judge Maclean declined leave to appeal on 17 July 2015: [2015] NZACC 202.

2      I  refer  to  the  respondent as  the  Corporation.   All  section references in  this judgment are references to sections in the Accident Compensation Act 2001 (the Act).

CARTER v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 2692 [30 October 2015]

Facts

[2]      The factual background to this application for special leave is fully set out in Judge Powell’s decision, and need not be repeated at length here.   Very much in summary,  Mr  Carter  has,  since  the  mid-1980s,  pursued  a  claim  for  unlawful dismissal  against  his  then employer,  the New  Zealand Post  Office,  and  various successor  entities.    In  1994  in  this  Court  Ellis  J  issued  a declaration  that  “the annulment  of  the  employment  of  [Mr  Carter]  was  unlawful,  and  his  dismissal

wrongful”.3   Mr Carter continues to pursue his complaint.  Mr Carter communicates

extensively with various arms of the Government. To do so he types for long periods of time.  Mr Carter suffered a heart attack on 23 August 2012, after he had – he says

– spent some five hours typing an email in connection with his claim.

[3]      Mr Carter made an ACC claim based on that heart attack.  He did so after a consultation with a general practitioner, who completed the claim form as required.

[4]      The claim recorded Mr Carter’s occupation as a mail carrier/sorting clerk, and that he was in paid employment with the Post Office.   Part C of that form: “Injury Diagnosis and Assistance” recorded:

Diagnosis – G30. Acute myocardial infarction.

Injury comments – (G30.00) Confirmed says it is gradual process injury.

[5]      The Corporation acknowledged that claim on 13 February 2013.  In doing so it said, amongst other things:

Your treatment provider has made a claim on your behalf for the following medical condition, which you believe developed because of your work:

Acute myocardial infarction

We are sorry to hear of your medical condition, and will assess your claim as quickly as we can.  Before we can do that, there is some extra information we need.

[6]      The Corporation specified the additional information required, and included with  that  letter  the  Corporation’s  information  sheet  “Assessing  cover  for  your

work-related gradual onset, disease or infection claim”.

3      Carter v Attorney-General HC Wellington CP781/87, 24 November 1994 at 15.

[7]      On 22 March the Corporation wrote to Mr Carter advising him “we need more time to consider your claim”.  The Corporation said they would be in touch with Mr Carter as soon as possible, and certainly by 10 June 2013.

[8]      On 26 April 2013, and after Mr Carter had been assessed by a Dr Hartshorn, the Corporation wrote to him declining his claim. The Corporation said:

We are unable to approve your claim because ACC does not cover cardio- vascular events unless the episode is caused by physical effort or physical strain, in performing an employment task that is abnormal in application or excessive in intensity for the person.

Furthermore,  ACC  does  not  cover  personal  injury  that  is  related  to non-physical stress.

[9]      That decision was upheld on review, and Mr Carter then appealed to the

District Court.

[10]     Judge Powell summarised the issues before him in the following terms:4

[1]       The substantive issue in this appeal is whether the respondent, by decision dated 26 April 2013, was correct in declining the appellant’s claim for  cover  for  an  acute  myocardial  infarction  (heart  attack)  suffered  on

11 February 2013.

[2]       At the hearing of this appeal the appellant argued that the substantive issue was irrelevant.  In his view, because of the length of time taken by the respondent to make a decision on the claim, the appellant was entitled to deemed cover, and in the event that I was not prepared to hold that deemed cover  existed  then  the  present  appeal  should  be  stayed  pending  the conclusion of proceedings before the Employment Relations Authority. As a result these issues also require consideration in the course of this judgment.

[11]     It is on the issue of “deemed cover” that Mr Carter now seeks leave to appeal. Judge Powell found that because, as a matter of fact, Mr Carter’s claim was filed as one for a work-related gradual process injury, the Corporation was entitled to investigate it on that basis.   Accordingly, no question of “deemed cover” arose, because the Corporation’s investigations met the timetable requirements for claims of that type.   Mr Carter’s argument was that, in fact, there cannot be a “gradual

process”  claim  for  a  workplace  heart  attack.    Accordingly,  a  shorter  statutory

4      Carter v Accident Compensation Corporation, above n 1.

timetable  applies  to  the  Corporation’s  decision-making  process.     Because  the

Corporation did not meet that timetable, Mr Carter says he had deemed cover.

[12]     Mr Carter phrased the specific grounds of the appeal for which he now seeks leave on the deemed cover issue in the following terms:

(a)       The Judge erred in law and in fact in deciding at [24] that it was appropriate that the claim lodged by the ACC on 12.2.2013 for an “acute” or “rapid onset” heart attack under s20(2)(j) of the Act be investigated, extended or determined as being for a “gradual onset” or “chronic” coronary artery disease claim under s20(2)(e) when he himself decided, to the contrary at [30] that such investigations are statute barred, ultra vires and impossible to approve at [sic] be for cover;

(b)       The Judge erred in law and in fact in failing to confirm the obvious, that  an  acute,  or  rapid  onset  claim was  lodged  by  the ACC  on

12.2.2013; it was not investigated, determined or extend [sic] within the statutory time limit under s56, as he noted at [16], and therefore I

have deemed cover under s58;

Analysis

[13]     The Corporation is required to make its decisions, amongst other things, “in a timely  manner”.5    Sections  56  and  57  stipulate  what  is  a  “timely  manner”. Section 57 of the Accident Compensation Act 2001 deals with complicated claims, s

56 with all other claims.   A claim for personal injury caused by a work-related gradual process, disease, or infection is a complicated claim.

[14]     In the case of ordinary claims, s 56, as relevant, provides:

(2)       The   Corporation   must   take   the   following   steps   as   soon   as practicable, and no later than 21 days, after the claim is lodged:

(a)      investigate the claim—

(i)       at its own expense; and

(ii)      to the extent reasonably necessary to enable it to take the following steps in this subsection; and

(b)      either—

(i)       make its decision on the claim and give notice of it under section 64; or

5      Section 54.

(ii)      decide that it cannot make its decision on the claim, or  any  other  decision,  without  additional information, extend the time for making its decision, and tell the person making the claim about the extension.

(3)       Except  where it  decides under  subsection  (2)(b)(ii) that it  needs additional information, section 58 applies if the Corporation does not make its decision within 21 days after the claim was lodged.

(4)       If  subsection  (2)(b)(ii)  applies,  the  Corporation  must  take  the following steps as soon as practicable:

(a)       make a reasonable request to the person, or decide to make a request to another person, for the additional information; and

(b)       if the Corporation makes a request to another person for the additional  information,  tell  the  person  making  the  claim about the making of the request and its nature; and

(c)       make its decision on the claim and give notice of it under section 64.

(5)       In  any  case  dealt  with  under  subsection  (4),  the  Corporation's decision on the claim must be made within 4 months of the claim being lodged.

[15]     Section 57(2)-(5) is expressed in very similar terms except that:

(a)      The Corporation must take the first (subs (2)) steps no later than two months after the claim is lodged, not 21 days.

(b)A maximum period of two months is specified for any extension the Corporation claims under subs (2)(b), so that, as with ordinary claims, a decision is to be made within four months.  The Corporation and the person making the claim may, however, agree to further extensions. In that event, the Corporation’s decision on the claim must be made within nine months of the claim being lodged.

(c)       Section 56(3) has no equivalent in s 57, but s 58 applies nevertheless.

[16]     Section 58 provides for deemed cover in the following terms:

58       Effect of failure to meet time limits

(1)      When the Corporation fails to comply with a time limit under section

56 or section 57, whichever applies, the claimant is to be regarded as having a decision by the Corporation that he or she has cover for the

personal injury in respect of which the claim was made.

(2)      When subsection (1) applies, the Corporation must tell the person that—

(a)      the time limit has expired without the Corporation having made a decision; and

(b)      the effect is that the claimant has a decision that the claimant has cover; and

(c)      the date of the decision is the date of the expiry of the time limit.

[17]     In the context of those provisions Mr Carter would argue:

(a)      Although he described his heart attack as the result of a workplace gradual process disease or infection, the Corporation was wrong to treat it as such.   As Judge Powell himself found in MacFarlane v Accident Compensation Corporation:6

[29]   … Whichever way the appellant approaches the issue the appellant’s injuries were ultimately the result of a stroke.  Even if it was the result of a work related gradual process injury, the stroke  itself  was  still  a  “cardiovascular  episode”  for  the purposes of s 26(3) and therefore excluded from the definition of  personal  injury  unless  the  exceptions  in  s  20(2)(i)  or  (j) apply.  Although raised at one point the appellant is no longer alleging that the stroke was in any way the result of a treatment injury and therefore s 20(2)(i) does not apply; nor is there any claim that the stroke was caused by “physical effort or physical strain in performance of [the appellant’s] employment” which pursuant  to  s  20(2)(j)  is  the  only  other  exception  to  the exclusion of stroke from the definition of personal injury.  The consequence of this is that stroke is therefore excluded from the definition  of  personal  injury  for  the  purposes  of  s  20(2)(e). More simply put, a stroke cannot be a work related gradual process injury.

(b)Given that a stroke cannot be a work-related gradual process injury, a proposition which the Corporation does not disagree with, the Corporation could only treat his claim as one to which s 57 did not

apply.

6      MacFarlane v Accident Compensation Corporation [2014] NZACC 141.

(c)      The Corporation did not comply with the statutory requirement to act in a timely manner.  The Corporation did not make its decision or seek an extension within 21 days of the lodgement of Mr Carter’s claim on

12 February 2013, namely 5 March 2013, as required by s 56(2) and (3).   Rather acting wrongly, on the basis that it was dealing with a gradual process claim, it did not notify an extension, it would appear, until 22 March 2013.

[18]     Special leave should only be given for a question of law capable of serious and bona fide argument arising from the decision of the District Court.   The real issue here is whether Mr Carter’s description of his heart attack allowed the Corporation to treat it as a claim for cover which, in fact, was not available and thereby have the benefit of the longer decision-making time periods provided by s 57, in contrast to those applicable under s 56.   In my view it is clearly arguable that, as a matter of law, a claimant’s description of the cause of their claim cannot itself be determinative of the true nature, under the Act, of the claim being made.  To that extent, I accept that the appeal for which leave is sought is one that raises a question of law capable of serious and bona fide argument.  I note that s 57(5) may be relevant to that argument.

[19]     The  Corporation  responds  that,  even  if  Mr  Carter  established  that  s 58 applied, any deemed cover would most assuredly be revoked by a decision of the Corporation because there is no tenable case in substance that Mr Carter would be entitled to cover for a myocardial infarction by an accident event.  This is so because to qualify, such an accident event must be caused by physical effort or strain of abnormal application or excessive intensity “in performing his or her employment”. Moreover, the Corporation says, “the appellant has not been employed with NZPO or its successors since September 1984 and even if he had been, the typing activity he  implicates  as  causative  of  the  injury  was  not  part  of  his  employment  as  a postman”.

[20]     I acknowledge those submissions.  On the other hand, Mr Carter argued that the question of his employment status is currently before the Employment Tribunal, and that any decision to revoke must be made by the Corporation on proper grounds.

[21]     Taking something of a pragmatic (given the history of this matter) approach, my assessment is that it will be more efficient to grant Mr Carter special leave to have what I think is an arguable point of law argued.  Whether or not a successful appeal on that point of law would, subsequently, advance Mr Carter’s claims in any meaningful way is a question better left to subsequent determination.

[22]     Accordingly  Mr  Carter  is  granted  leave  to  appeal  to  this  Court  on  the questions:

(a)       Whether Judge Powell erred in law and in fact in deciding at [24] that it was appropriate that the claim lodged with the ACC on 12 February

2013 for an “acute” or “rapid onset” heart attack under s 20(2)(j) of the  Act  be  investigated,  extended  or  determined  as  being  for  a “gradual  onset”  or  “chronic”  coronary  artery  disease  claim  under s 20(2)(e).

(b)Whether Judge Powell erred in law and in fact in failing to determine that Mr Carter had deemed cover under s 58.

Clifford J

Solicitors:

Accident Compensation Corporation, Wellington

Copy to:

J H Carter