CW v Accident Compensation Corporation

[2023] NZHC 2388

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-915

[2023] NZHC 2388

BETWEEN

CW

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	29 August 2023
Appearances:	B Hinchcliff for Applicant F Becroft for Respondent
Judgment:	30 August 2023

JUDGMENT OF LANG J

[application for special leave to appeal pursuant to s 162 of the Accident Compensation Act 2001]

This judgment was delivered by Justice Lang On 30 August 2023 at 11.00 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:

ACC and Employment Law, Auckland Medico Law Ltd, Auckland

CW v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2388 [30 August 2023]

[1]    CW seeks special leave to appeal against a decision delivered by Judge P R Spiller in the District Court at Wellington on 12 December 2022.1 In that decision, the Judge dismissed CW’s appeal against a decision of a Reviewer dated 22 February 2022. The Reviewer had dismissed an application by CW for review of a decision of the Accident Compensation Corporation (the Corporation) dated 10 May 2021 declining cover for a mental injury to CW caused by medical treatment.

[2]    CW requires special leave to appeal because Judge C J McGuire declined to grant CW leave to appeal against Judge Spiller’s decision in a decision delivered on 27 April 2023.2

Background

[3]    On 14 May 1977, CW slipped down steps and injured her back. On 6 April 1980,  Dr  B  R  Cross   wrote   to   the   Accident   Compensation   Commission   (the Commission) advising that CW had consulted him regarding pain in her neck and lower back. X-rays revealed a normal cervical spine and a congenitally abnormal lumbar spine.

[4]    On 14 August 1980, Dr Orr administered a spinal injection of xylocaine and ethamolamide into CW’s L5/S1 interspinous/supraspinous ligament to treat continuing back pain.

[5]    CW subsequently lodged several further claims seeking cover under the Accident Compensation Act 2001 (the Act) for back pain allegedly flowing from the injury caused by the injection administered on 14 August 1980. These are described in considerable detail in Judge Spiller’s decision3 and it is not necessary to repeat them for present purposes. The Commission, and subsequently the Corporation, have consistently declined the claims because they did not accept that the continuing discomfort CW was experiencing could be linked to the injection given in 1980.

1      CW v Accident Compensation Corporation [2022] NZACC 241.

2      CW v Accident Compensation Corporation [2023] NZACC 65.

3      CW v Accident Compensation Corporation, above n 1, at [11]–[27].

[6]    The present proceeding has its genesis in a claim that CW’s general practitioner filed with the Corporation on 9 January 2019. This sought cover for post-traumatic stress disorder (PTSD) allegedly resulting from the injection administered on 14 August 1980. As noted, the Corporation declined this claim in a decision issued on 10 May 2021. CW filed an application for review of this decision. On 22 February 2022 the Reviewer dismissed the review on the basis that there was insufficient evidence to show that CW’s mental injury was caused by the injection. The appeal to the District Court followed that decision. At the  hearings  before  both  the  Reviewer  and  Judge Spiller CW relied on reports she had obtained from a psychiatrist, Dr Gil Newburn. CW had declined to allow another psychiatrist instructed by the Corporation to examine her for the purpose of peer reviewing Dr Newburn’s report.

[7]    After receiving Dr Newburn’s report the Corporation referred it to Mr Jake Dickson, a Psychology Advisor, who completed a file review and advised the Corporation  not  to  accept  the  claim.   Mr  Dickson  told  the  Corporation  that   Dr Newburn’s report contained significant oversights and that it was not a comprehensive mental injury report. The Corporation relied on this advice in opposing the review and the appeal to the District Court.

Judge Spiller’s decision

[8]    Judge Spiller’s reasoning is encapsulated in the following paragraphs of his decision:

[48]      The issue in this case is whether there is sufficient evidence, on a balance of probabilities, that the appellant has suffered mental injury as a result of a physical injury suffered in treatment (a spinal injection) received in August 1980. In terms of section 26(1)(c) of the Act, the appellant must establish that she suffered mental injury because of a physical injury. This means that, in principle, she must establish that, but for her physical injury by treatment of Dr Orr in 1980, she would not have her mental injury of post- traumatic stress disorder (PTSD), and that her physical injury materially contributed to her disorder.

[49]      Mr Hinchcliff, for the appellant, submits as follows. The evidence supports that the appellant suffers from a mental injury caused or contributed to by treatment in 1980. There is no evidence that she suffered from a mental injury before the treatment. The interaction between the sensitive claim and the mental injury due to treatment has been answered by Dr Newburn. He assessed that it was more probable than not that the appellant's current presentation remained a clear and consistent consequence of the injuring event

in 1980. It is not reasonable for the Corporation to demand that the appellant have an in-person assessment with a psychiatrist. The Corporation could have requested an opinion from a specialist on the papers at any time.

[50]      The Court acknowledges the above submissions. The Court notes also the following evidence.

(a)The appellant's claim for PTSD was lodged in January 2019, over 38 years after she received a spinal injection administered by Dr Orr.

(b)On 3 November 2012, Dr Jansen, Consultant Psychiatrist, attended the appellant at her home. Dr Jansen noted that the appellant had a very longstanding belief that she had multiple problems that she attributed to a pain-relieving injection given by Dr Orr into her spine in 1980. Dr Orr recorded that it was established that the appellant's belief that she had spina bifida occulata and that as a result Dr Orr hit the wrong spot, causing all sorts of neural damage, was without foundation. Dr Jansen found that her spinal cord appeared to be normal, but she had some degenerative changes in her body spine. Dr Jansen diagnosed psychosis (not otherwise specified), probably schizophrenia of long standing, of the nature of delusional disorder.

(c)On 27 April and 19 June 2016, the appellant presented to assessors at her local District Health Board Mental Health Services. The assessors noted that she reported a conspiracy in the health system since she had a needle put in her back 37 years before by a doctor who caused her significant problems (even though the history was of spina bifida occulta). The assessors diagnosed a mixed cluster of personality traits, including schitzotypal and delusional disorder.

(d)On 6 April 2020, a Reviewer, having conducted a review to consider the appellant's claim, directed as follows. The Corporation was to engage an appropriate specialist for the purpose of assessing whether the appellant's physical injury caused by Dr Orr's injection materially contributed to a possible diagnosis of PTSD. The Corporation was to ensure that, at the time of engaging a specialist, all medical relevant reports and other information were made available. In addition, a copy of the Reviewer's decision (which included consideration of the reports of 2012 and 2016) should be provided.

(e)It appears that the Corporation duly made available the relevant medical reports and other information. The Corporation also liaised with Mr Hinchcliff, the appellant's advocate, about the engagement of an appropriate specialist. On 19 June 2022, Mr Hinchcliff gave permission for the Corporation to access all the appellant's medical information related to her PTSD condition, and provided the names of three psychiatrists from whom the assessor was to be chosen. The Corporation objected to a referral to one of the named

psychiatrists, Dr Newburn, but agreed to the appointment of another of the psychiatrists listed. However, the appellant went ahead and arranged an appointment with Dr Newburn.

(f)Dr Newburn's ensuing reports were based primarily on the appellant's self-reported evidence. The reports contained no mention of the mental health reports of 2012 and 2016 (noted above), which made specific reference to her claims about the 1980 injury, and which provided a mental assessment of her at the time.

[51]      The Court concludes from the above evidence that the appellant has not established on a balance of probabilities, through Dr Newburn’s report, that her physical injury, caused by Dr Orr's injection, materially contributed to a diagnosis of PTSD. Despite the clear directions of the Reviewer, not all relevant medical evidence was considered by Dr Newburn in his assessment. The Court does not accept that it is appropriate that the Corporation could have directed that further psychiatric assessment be done on the papers. The appellant's claim, dating back many years, and covering complex mental issues, needs to be assessed through an examination of the appellant by an appropriate specialist.

Conclusion

[52]      In light of the above considerations, the Court finds that there is not sufficient evidence, on a balance of probabilities, that the appellant has suffered mental injury as a result of a physical injury suffered in treatment (a spinal injection) received in August 1980. The decision of the Reviewer dated 22 February 2022 is therefore upheld.

(Footnote omitted)

Relevant principles

[9]Section 162 of the Act provides as follows:

162 Appeal to High Court on question of law

(1)A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.

(2)The leave of the District Court must be sought within 21 days after the District Court’s decision.

(3)If the District Court refuses to grant leave, the High Court may grant special leave to appeal.

(4)The special leave of the High Court must be sought within 21 days after the District Court refused leave.

(5)The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.

[10]   Fisher J helpfully summarised the principles applicable to an application for special leave to appeal in Kenyon v Accident Compensation Corporation.4 In short, the requirement for leave provides a filter through which this Court can ensure that its resources will only be used to hear appeals on questions of law that have a reasonable prospect of success.5 This principle would be defeated if leave was granted as a matter of course.6 This means the applicant bears the onus of establishing that leave should be granted in the interests of justice. Given that the District Court has already refused to grant leave the applicant will normally be required to point to some extraordinary factor that has not been taken into account.

[11]   Importantly, the Court must ensure that it only entertains appeals on questions of law or questions of mixed law and fact. It must take special care to ensure that it is not being asked to determine appeals on issues that are essentially factual in nature.

[12]   Mr Hinchcliffe’s written submissions filed in support of the application pose questions of law that go well beyond those referred to in the notice of application for leave to appeal. This is not permissible. The notice of application defines the questions an applicant is seeking to advance on the appeal. Barring amendment, the proposed questions of law set out in the notice must form the basis of the Court’s decision.

The proposed appeal

[13]   In her notice of application for leave to appeal CW poses the following questions of law for this Court to determine if leave to appeal is granted:

(a)When is it reasonable under s 55(1)(d) and (e) of the Act for a person to refuse to undergo a medical assessment?

(b)How much evidence is required before the Corporation must approve cover? In this case, was enough evidence obtained?

4      Kenyon v Accident Compensation Corporation [2001] NZHC 1301.

5 At [15].

6      O’Loughlin v Healing Industries Ltd [1990] 2 PRNZ 464 (HC).

(c)When has the Corporation met the “reasonable grounds” test in s 54 of the Act?

Question 1: When is it reasonable under s 55(1)(d) and (e) for a person to refuse to undergo a medical assessment?

[14]Section 55(1) of the Act provides as follows:

55Responsibilities of claimant to assist in establishment of cover and entitlements

(1)A person who lodges a claim under section 48 must, when reasonably required to do so by the Corporation,—

(a)give the Corporation a certificate by a registered health professional 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 a medical assessment by a registered health professional specified by the Corporation, at the Corporation’s expense:

(e)undergo any other assessment at the Corporation’s expense.

[15]   As will be evident from the wording used in the section, s 55(1) places obligations on a person who lodges a claim for cover. These are obviously designed to ensure the Corporation can count on the co-operation of the claimant in determining whether cover should be granted.

[16]   As framed, the proposed question is obviously far wider than appropriate for present purposes. The Court should be asked to determine a question of law arising from the case before it rather than a question posed in a general or generic way.  In the present case Mr Hinchcliffe referred to s 55(1) at the end of the written submissions he presented to the District Court. The Judge then referred to s 55(1)(d) in passing when discussing the relevant law. He also summarised Mr Hinchcliffe’s argument under s 55(1)(d), and appeared to agree with it, in the italicised portion of the following paragraphs of his decision:

[49]      Mr Hinchcliff, for the appellant, submits as follows. The evidence supports that the appellant suffers from a mental injury caused or contributed to by treatment in 1980. There is no evidence that she suffered from a mental injury before the treatment. The interaction between the sensitive claim and the mental injury due to treatment has been answered by Dr Newburn. He assessed that it was more probable than not that the appellant’s current presentation remained a clear and consistent consequence of the injuring event in 1980. It is not reasonable for the Corporation to demand that the appellant have an in-person assessment with a psychiatrist. The Corporation could have requested an opinion from a specialist on the papers at any time.

[50]      The Court acknowledges the above submissions. … (Emphasis added)

[17]   Importantly, however, the Judge did not  base his decision on  any aspect  of  s 55(1)(d) or (e). Rather, he based it on the sufficiency of Dr Newburn’s report for the purposes of determining whether CW has suffered “personal injury” as that term is defined in s 26(1)(c) of the Act. The issue of whether it was reasonable for CW to decline to undergo another assessment was therefore obviously viewed by the Judge as not being relevant to the decision he was required to make. It follows that s 55(1)(d) and (e) were not engaged in the present case and no arguable ground of appeal arises in relation to them.

[18]   During the hearing Mr Hinchcliffe explained that the gravamen of CW’s complaint under this ground relates to the fact that the Corporation effectively took no steps to obtain further advice after CW declined to be examined by another health assessor instructed by the Corporation. He points out that it could, for example, have had Dr Newburn’s report peer reviewed by another health assessor on the papers. However, this is effectively what the Corporation did when it referred Dr Newburn’s report to Mr Dickson for comment.

[19]   Given the fact that the Judge did not rely on s 55(1) in reaching his decision this ground of appeal does not reach the threshold of being arguable.

Question 2: How much evidence is required before the Corporation is required to provide cover? In this case, was enough evidence obtained?

[20]   As will be evident, this ground comprises two separate questions. The first is a question of law but, as Mr Hinchcliffe acknowledges, the second is purely a question of fact. I therefore propose only to consider the first question.

[21]   The answer to the first question is straightforward when applied to the circumstances of the present case. As the Judge noted at the beginning of the passage set out above,7 the issue in the present case was whether there was sufficient evidence, on the balance of probabilities, that CW suffered mental injury as a result of any physical injury caused by the spinal injection she received on 14 August 1980. The phrase on the balance of probabilities means “more likely than not”. Later in the same paragraph the Judge extrapolated the test by saying that, in principle, CW was required to establish that, but for the injection she received in 1980, she would not have the mental injury (PTSD) and that her physical injury materially contributed to her disorder.

[22]   The Judge ultimately concluded that CW had failed to establish on the balance of probabilities that the physical injury caused by the injection in 1980 contributed to a diagnosis of PTSD.8 This meant there was insufficient evidence, on the balance of probabilities, to establish that she had suffered mental injury as a result of physical injury so as to constitute “personal injury” in terms of s 26(1)(c) of the Act.9

[23]   Leave to appeal should not be granted under this ground given that the Judge’s approach, both in terms of enunciating and applying the appropriate test, was manifestly correct.

Question 3: When has the Corporation met the “reasonable ground” test in s 54 of the Act?

[24]Section 54 of the Act provides as follows:

7 At [8].

8      CW v Accident Compensation Corporation, above n 1, at [51].

9 At [52].

54Responsibility of Corporation to make reasonable decisions in timely manner

The Corporation must make every decision on a claim on reasonable grounds, and in a timely manner, having regard to the requirements of this Act, the nature of the decision, and all the circumstances.

[25]   During the hearing Mr Hinchcliffe advised me that the reference to s 54 in the notice of application was an error and that he had intended to refer to s 57 of the Act. Section 57 relevantly provides as follows:

57       Steps Corporation takes to action complicated claims for cover

(1)This section applies to a claim for cover—

(a)for mental injury in the circumstances described in section 21 or 21B:

(b)for personal injury caused by a work-related gradual process, disease, or infection:

(c)for personal injury caused by treatment:

(d)lodged outside the period stated in section 53.

(2)The Corporation must take the following steps as soon as practicable, and no later than 2 months, 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

(ii)decide that it cannot make its decision on the claim, or any other decision, without additional information, and tell the person of the extension, which must not exceed 2 months, that will be required.

…

[26]   Mr Hinchcliffe advised me that he proposed to rely on s 57(2)(a)(ii). I note, however, that s 57(2)(a)(ii) does not contain any reference to “reasonable grounds”. Rather, it imposes an obligation on the Corporation to investigate a claim “to the extent reasonably necessary” to enable it to take the steps then referred to in the subsection.

If this ground of appeal was to proceed further it would obviously be necessary to amend the proposed question to reflect the wording used in s 57(2)(ii).

[27]   However, this argument faces an immediate obstacle because Mr Hinchcliffe did not advance any argument based on s 57 before the Reviewer or at the hearing in the District Court. It is not permissible to raise it for the first time in an appeal to this Court. The argument fails as a result.

Result

[28]The application for leave to appeal is dismissed.

Costs

[29]   The Corporation is the successful party and would ordinarily be entitled to costs on the application. However, I am not aware whether CW is legally aided. I therefore reserve leave to counsel to file concise memoranda regarding costs if they cannot reach agreement on that issue.

Lang J