Gilmore v Accident Compensation Corporation
[2016] NZHC 1594
•14 July 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2016-485-000121 [2016] NZHC 1594
BETWEEN JODIE GILMORE
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 15 June 2016 Appearances:
A C Beck for Applicant
H A Evans for RespondentJudgment:
14 July 2016
JUDGMENT OF DUNNINGHAM J
[1] In September 2001 the Accident Compensation Corporation (ACC) accepted Ms Gilmore’s claim for a neck sprain injury which she said stemmed from a trampolining accident on 21 October 2000.
[2] In January 2013 ACC decided to revoke that decision under s 65 of the Accident Compensation Act 2001 (“the Act”). It did this because, in 2012, it undertook a comprehensive investigation into Ms Gilmore’s contemporaneous medical records and decided they did not support her claim to have sustained a neck injury on 21 October 2000 of such a nature to have caused the subsequent symptoms she has experienced.
[3] Ms Gilmore appealed ACC’s decision, but her appeal was rejected by
Judge Powell in a decision issued on 30 January 2015.1 She then applied for leave to
appeal to the High Court and that was rejected by Judge Harrison in a decision which issued on 4 February 2016.2
[4] Ms Gilmore now applies for special leave to appeal the decision of Judge Powell on the grounds that the decision is wrong in law, as required by s 162 of the Act.
[5] For leave to be granted I must be satisfied that there is a question of law to be argued and that it reaches the threshold required to justify allowing a further right of appeal to this Court.
Background
[6] On 10 August 2001 ACC granted Ms Gilmore cover for a neck sprain injury which she said was suffered as a result of a trampolining accident on
21 October 2000. Ms Gilmore was 13 years old at the time of the accident. In her written account provided to ACC in 2012 she says that she attempted a forward roll onto a trampoline where she injured her neck and, initially, was unable to move at all until the father of one of her friends managed to manipulate her neck. Although she says she was in severe pain, she was camping with friends at the time, so no medical assistance was sought on the day of the accident, nor when she returned home early the next day. However, both Ms Gilmore and her mother say that they saw Ms Gilmore’s general practitioner Dr Robert Morten, two days after the accident and he prescribed rest as well as medication for her ongoing pain.
[7] Between 2001 and 2009, after ACC granted cover, there was extensive medical investigation of Ms Gilmore’s condition. However, x-rays and MRIs found nothing abnormal in her neck. At least two medical practitioners, Mr Dunbar and Dr Alan Walker, considered that the muscle pain and spasm she was experiencing suggested she was suffering from a disorder like fibromyalgia.
[8] During this period Ms Gilmore experienced a variety of ongoing disabling symptoms, including pain and migraines, and she received a variety of treatments,
including physiotherapy, which ACC covered. All the specialists she saw accepted that the treatment being provided was responding to ongoing symptoms of the
21 October 2000 injury.
[9] In late 2010 Ms Gilmore started going to a physiotherapist/acupuncturist, Dr Adam Lin. He requested funding for 12 physiotherapy/acupuncture treatments. On 20 December 2010, ACC declined to fund the treatment on the basis there was “no clear cause or link … between the current need for treatment and the covered neck sprain injury”. Further information was supplied by Ms Gilmore’s GP to support the request but, again, ACC declined to fund the further treatment.
[10] At that point Ms Gilmore sought the services of musculoskeletal and spine physician, Dr Jim Borowczyk. He recorded that:
Ms Gilmore has ongoing upper cervical and occipital pain of undiagnosed origin … Given the nature of her injury there are reasons for this. From her description, and from clinical examination, the most likely sources of her pain are the upper cervical facet joints. This is the most compelling diagnosis. Her injury is similar to ‘whiplash syndrome’, well recognised in victims of motorcycle accidents. In her case this was a hyperflexion injury that occurred on the trampoline.
[11] In a review decision dated 23 November 2011, ACC’s decision to refuse the physiotherapy/acupuncture treatments that Dr Lin requested funding for was quashed. The reviewer found that, with Dr Borowczyk’s report, Ms Gilmore had established, on the balance of probabilities, that she was entitled to the requested treatment because of the causal link between a covered injury and the need for treatment.
[12] However, in 2012, when Ms Gilmore applied for loss of potential earnings weekly compensation, ACC undertook a reconsideration of the initial grant of cover. Judge Powell explains this investigation as follows:3
As part of this investigation the Corporation obtained for the first time Ms Gilmore’s medical records covering the period prior to the trampoline accident through to a date after cover had been granted by the Corporation. These materials were considered and commented on widely within the Corporation and were the subject of a number of internal reports filed by
3 Gilmore v Accident Compensation Corporation, above n 1, at [4].
advisers. Following this period of internal discussion and debate the Corporation determined that cover had in fact been granted in error in September 2001, and revoked cover for the trampoline accident, …
[13] The letter dated 31 January 2013 revoking cover explained that, as a result of Ms Gilmore’s recent claim for entitlement to loss of potential earnings compensation, ACC obtained “new and significant contemporaneous medical information” which included:
(a) copies of Ms Gilmore’s contemporaneous medical notes from the
Mosgiel Health Centre for the period from 1998-2001;
(b)the medical report completed by Dr Steve Bentley, a specialist musculoskeletal physician, dated 2 March 2001;
(c) the x-ray report ordered by the osteopath, Dr Chris McGrath, dated
2 May 2001; and
(d) Ms Gilmore’s contemporaneous medical notes from 10 August 2001
until 19 September 2001.
[14] Critically, the revocation letter said:
Of significance is the fact that your contemporaneous medical notes obtained from around the time of your accident on 21 October 2000, do not show that any early treatment was sought for a neck injury. You consulted Dr Elizabeth Harris at the Mosgiel Health Centre on 9 February 2001. Dr Harris diagnosed you as having “pain” and “tenderness” in the “C5/6 region”, in your neck. Significantly Dr Harris recorded “no neck pain but daily headaches with no neurological symptoms,” and no history of personal injury by accident to your neck. You were referred to Dr Steven Bentley records [sic] you as having had, “headaches since the age of seven, which are frontal and almost daily, tending to be worse as the day goes on. There is no neck pain”. Dr Bentley records no history of any injury to the neck. Dr Chris McGrath saw you from April 2001. He ordered an x-ray of the neck taken on 2 May 2001, and this report states, “Clinical: Longstanding cervicogenic headache. No neuro signs. “Your ongoing medical notes after the claim for cover was completed between 10 August 2001 and
19 September 2001, do not record any ongoing cervical discomfort or neck injury. These medical notes however do indicate recurrent headache and abdominal pain, which despite seeing many therapists, the impression was that this was likely stress related, and that you were referred to counselling.”
[15] ACC went on to explain that Ms Gilmore had been referred to see Dr L J de Plessis with all this new information. After carrying out an examination of her and reviewing the full medical history, he noted the lack of medical information confirming an injury as being significant and said that he was “unable to confirm that [Ms Gilmore] had sustained an injury on 21 October 2000 of such a nature that it would have caused [her] symptoms to develop at a much later stage”.
[16] The new medical information and medical reports were also considered by a Branch Advisory Panel, and by ACC’s medical director, Dr Gerard Walker. The conclusion was that as a result of the new information, ACC revoked its decision of
13 September 2001 and declined any further cover for Ms Gilmore’s injury from
28 February 2013.
[17] Ms Gilmore applied for a review of the revocation decision but the reviewer dismissed her application on 16 October 2013 saying ACC correctly revoked her cover for a neck sprain based on the “new and fresh” material obtained in its subsequent investigation.
The District Court decision
[18] At issue in the appeal to the District Court was whether ACC’s decision to revoke cover for a neck sprain injury sustained on 21 October 2000 was correct.
[19] Judge Powell set out the factual background to the appeal and then went on to discuss the evidence relied on by ACC to revoke its decision to provide cover. The Judge noted that Ms Gilmore’s records with the Mosgiel Health Centre “do not mention a trampoline accident until the consultation of 10 August 2001, 10 months later, when cover was sought from the Corporation”. Importantly, the Judge observed that there was:4
… no record of Ms Gilmore having had a consultation with Dr Morten on the Monday following the accident (23 October 2000) as both Ms Gilmore and her mother stated was the case at the review hearing. The records likewise failed to disclose such consultation on any other date, nor do the records disclose evidence of ongoing neck pain that was alleged by Ms Gilmore to have been a consequence of the trampoline accident.
4 Gilmore v Accident Compensation Corporation, above n 1, at [12].
[20] He found the appellant’s suggestion that the records were somehow incomplete had no foundation and was “inherently implausible” given the extent of the notes available which otherwise show in detail the treatment Ms Gilmore was receiving in the relevant period with regard to a range of different conditions.
[21] He also placed weight on the fact that during a consultation Ms Gilmore had with Dr Elizabeth Harris at the Health Centre on 9 February 2001, there was no mention of the trampoline accident. Instead he observed that the primary focus of the consultation related to abdominal issues and the notes specifically recorded that there was “no neck pain but daily headaches” and that these headaches had been occurring “for the past six years”. He observed that when that consultation occurred, Ms Gilmore referred to an accident which had taken place when she was very young, where she had banged her head on a chair requiring stitches. He considered it was noteworthy that Ms Gilmore thought this accident was of sufficient importance to have told Dr Harris about it, and for it to have been recorded, in contrast to the lack of any corresponding record of a trampoline accident or injury.
[22] He expressed the view that “given the detailed report provided by Dr Bentley, it would have been extraordinary if a trampoline accident of the severity claims (sic) by Ms Gilmore had been mentioned and yet not recorded”.5 As a consequence he
concluded that:6
Taking these matters together I find the evidence relied upon by the Corporation to be compelling and I reach the inescapable conclusion that there can be no basis for suggesting a trampoline accident resulting in a neck sprain occurred on 21 October 2000.
[23] He went on to say that the reports of Professor Theis and Dr Borowczyk “do not and cannot change the position”. While they both provided an opinion that aspects of Ms Gilmore’s medical condition would be consistent with the type of injury she described, Judge Powell said they did not appear to have considered
Ms Gilmore’s recorded history of headaches that predated any accident in 2000.
5 At [17].
6 At [20].
[24] He expressed the view that, notwithstanding the reports of Professor Theis and Dr Borowczyk, “this is not a case where the alleged error is, in reality, a difference of opinion between experts”. Indeed he said that the opinions of Dr Borowczyk and Professor Theis were not being challenged, including that Ms Gilmore may well have suffered a hyperflexion injury of the type identified by Professor Theis. However, he concluded that neither of those medical professionals were able to give evidence that such symptoms related to the trampoline accident in
2000 for which cover had been granted, and the “documentary evidence is
overwhelming that such an accident did not occur as has been claimed …”.7
[25] Judge Powell’s conclusion was therefore:8 … that the test for revocation as set out in Bartels has been satisfied and that cover was indeed granted in error by the Corporation in 2001. As a result the Corporation was correct in revoking cover on 31 January 2013. [26]
Leave to appeal to the High Court was subsequently sought
from
Judge Harrison. He declined leave for the following reason:9
The Judge’s conclusion, being one of fact only, where he was satisfied that there was evidence to support the Corporation’s decision, and that the true and only reasonable conclusion on the evidence was that there had been no injury, confirms that there is no question of law to be referred to the High Court for determination.
Legal principles applying to applications for leave to appeal
[27] The application for special leave is sought under s 162 of the Act. The criteria to be applied before such applications are granted were discussed by Fisher J in Kenyon v Accident Compensation Corporation:10
(a) the purpose of acquiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart;11
7 At [22].
8 At [23].
9 Gilmore v Accident Compensation Corporation, above n 2, at [11].
10 Kenyon v Accident Compensation Corporation [2002] NZAR 385 at [15].
11 Sandle v Stewart [1982] 1 NZLR 708 (CA).
(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 Co-op Dairy Company Ltd v Lawry;12
(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;13
(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;14
(e) as leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account; Brown v Chowmein Fashions Ltd (supra).
[28] Section 162 makes it clear that an appeal is only allowed on a question of law. A question of law does not arise where the Court has merely applied law, which it has correctly understood, to the facts of an individual case. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is the matter for the
fact-finding Court unless clearly unsupportable.15 Whether or not a statutory
provision has been properly construed or interpreted and applied to the facts is a question of law.16 However, issues of fact should not be dressed up as questions of
law.17 That said, a mixed question of law and fact is a matter of law.18
12 Manawatu Co-op Dairy Company Ltd v Lawry [1988] DCR 509; Brown v Chowmein Fashions
Ltd (1993) 7 PRNZ 43.
13 O’Loughlin v Healing Industries Ltd (1990) PRNZ 464.
14 Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).
15 Bryson v Three Foot Six Ltd [2005] NZSC 34; [2005] 3 NZLR 721 (SC) at [25].
16 Commissioner of Inland Revenue v Walker [1963] NZLR 339 at 353-354.
17 Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361 (CA) at [2].
18 Commissioner of Inland Revenue v Walker above n 16, at 354.
[29] However, even if a question of law is identified, the Court has a discretion as to whether leave should be granted, and leave is not to be granted as a matter of course. As was said in Cullen v Accident Compensation Corporation:19
… The Court will exercise this power [to grant special leave], if satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. Other relevant considerations include the desirability of finality of litigation in the overall interests of justice. The primary focus is on whether the question of law is worthy of consideration.
[30] Counsel for Ms Gilmore referred to Bondarenko v ACC,20 to support a submission that all that was required for leave to be granted was that there was a seriously arguable matter for appeal. In Bondarenko, Ronald Young J referred to the need to meet “the modest test of arguable error of law”.21 However, the reference to a “modest test” in isolation ignores other matters the Court must consider, including whether that arguable error of law raises a question of sufficient interest, public or private, to outweigh the cost and delay of a further appeal.
The applicant’s case
[31] Counsel for Ms Gilmore contends that the District Court erred in law by:
(a) failing to apply correctly the test for revocation, and the High Court decision in Bartels, which requires ACC to show that it was clearly mistaken in its earlier decision; and
(b)reaching a conclusion that was not in accordance with the evidence and which failed to take all the relevant evidence into account.
[32] I consider each alleged error in turn.
Revocation under s 65
[33] Section 65 of the Act provides that ACC may revise decisions:
(1) If the Corporation considers it made a decision in error, it may revise the decision at any time, whatever the reason for the error.
(2) The Corporation may revise a decision deemed by s 58 to have been made in respect of any claim for cover, but may not recover from the claimant any payments made by it, in respect of the claim, before the date of the revision unless the claimant has made statements or provided information to the Corporation that are, in the opinion of Corporation, intentionally misleading.
(3) The revision may-
(a) amend the original decision; or
(b) revoke the original decision and substitute a new decision.
(4) Every amendment to a decision, and any substituted decision, is a fresh decision.
[34] The leading decision on the exercise of this power is Accident Compensation Corporation v Bartels.22 While the decision discusses s 390 of the Act (which provides for the revision of decisions made in error, including under predecessors of the current Act), it was common ground that s 65 was an equivalent provision, and the observations on the application of s 390 made in Bartels were applicable to s 65.
[35] In Bartels, the High Court explained that the purpose of the relevant section was to “ensure that … a decision does not stand where it can be established that the decision has been made in error”, and that this was a “backstop for both claimants and the Corporation when all else has failed (for example, a formal claim/appeal system)”.23
[36] However, the High Court went on to explain what was required to establish an error for the purpose of the section, saying:24
… a decision will not be made in error if there are credible differences of opinion between experts. “Error” requires the identification of factual material significant to the original decision which has now been exposed to be clearly wrong. It will not be sufficient to establish error for others to have a different opinion unless the new opinions are based on fresh or new evidence which was not in the possession of the original decision-makers and which undermines their decision to a degree from which one can conclude, with that information, that the decision was clearly wrong.
[37] Counsel for Ms Gilmore emphasised that there was an onus on the Corporation to establish, on the balance of probabilities, that it had met the criteria in s 65. As was said in Bartels:
[the] material must clearly establish that the original decision was made “in error” before it can invoke [s 62].25
[38] Similarly, in Ellwood v ACC, the Court said:26
I therefore consider that s 116 combined with the requirement in s 62 on ACC to make reasonable decisions requires ACC to have a sufficient basis before terminating benefits. If the position is uncertain then there is not a sufficient basis.
[39] Here, Ms Gilmore argues that the Court, while referring to Bartels, has not applied that decision correctly. Instead, the District Court decision “demonstrates none of the caution emphasised by the High Court in Bartels and Ellwood”.
[40] In Bartels, fresh medical opinions obtained in 2002 were relied on to revoke cover previously provided on the basis of medical opinions obtained in 1992. However, the Court held that the Corporation could not lawfully revoke cover simply because it preferred new medical opinions, which were based on the same facts and same medical knowledge as the original medical opinions. The Court’s reasoning
was as follows:27
The new medical opinions, given that they are based on the same medical knowledge as available in 1992, do not establish that the 1992 opinions were based on erroneous facts or lack of medical knowledge such that the decision by the Corporation in 1992 was made in error. The 2002 opinions do no more than express a different opinion from the medical opinions in 1992. In our view, this difference of opinion, even if it is an opinion the Corporation now prefers, cannot categorise the 1992 decision as “made in error”. It had and still has respectable medical opinion in its favour”.
[41] Counsel for Ms Gilmore argues that the same considerations apply in her case. He says that there is no new evidence as to what actually happened in 2000. Rather, all that has taken place is that a different interpretation has been placed on
events by some of the practitioners who were consulted by ACC in 2013. ACC is
25 At [28].
26 Ellwood v ACC [2007] NZAR 205 at [65].
27 Accident Compensation Corporation v Bartels, above n 22, at [38].
therefore in error to revoke cover, simply because it has new opinions which now conclude that a neck injury which triggered Ms Gilmore’s symptoms did not occur in October 2010.
[42] I do not accept the submission for Ms Gilmore that there is no new evidence as what actually happened in 2000. Up until ACC’s investigation, it appears it has relied on Ms Gilmore’s account of the precipitating injury. By obtaining access to the contemporaneous medical records listed in [13] above, ACC now has information which does not support Ms Gilmore’s account. In particular, in contradiction to the account of Ms Gilmore and her mother, there is evidence that there was no consultation with her doctor within two days of the trampolining incident. Indeed, in all of the medical notes up to the time of her claim in late 2001, there is no record of the trampolining injury. Furthermore, many of the symptoms that Ms Gilmore complains about were manifest prior to the date of the injury. This is all new evidence as to what actually happened in 2000 and, as Judge Powell concluded, “the documentary evidence is overwhelming that such an accident did
not occur as has been claimed”.28 It was not a factual finding which, as counsel for
Ms Gilmore suggested, was unclear or finely balanced.
[43] I also reject the suggestion that this is a case where the alleged error is a difference of a opinion between experts. What is at issue was whether, on the facts, Ms Gilmore suffered a neck sprain injury as a result of the trampoline accident in October 2000.
[44] The experts’ opinions were all based on the assumption that such an injury had occurred on that date, but the specialist opinions could do no more than say the symptoms she was experiencing were consistent with such an injury. That is not being disputed, but is irrelevant to the factual finding which was made by the ACC as to the veracity of Ms Gilmore’s account.
[45] Counsel for Ms Gilmore also submitted that ACC should have made appropriate investigations at the time of granting the cover when it would have been possible to obtain firsthand accounts from those involved. ACC should not be
entitled to receive “the benefit of any doubt” now that it has decided, in light of
Ms Gilmore’s claim for weekly compensation, to reinvestigate her claim.
[46] While I accept that ACC has an obligation to make appropriate investigations at the time of granting cover, I do not think it can be criticised for taking Ms Gilmore’s account at face value when it first granted cover. It would be administratively inefficient to require ACC to independently verify every aspect of each claim made at the time of granting cover.
[47] In any event, even if ACC had not properly investigated the matter at the time of granting cover s 65 is worded broadly enough, in my view, to encompass errors which are the “fault” of ACC. The section expressly says that ACC can revise the decision “whatever the reason for the error”. This ensures that questions of fault do not preclude either party from seeking to correct the error once the true position comes to light. For example, had ACC declined cover because it had relied on the wrong x-ray, the claimant could seek to have the decision declining cover revoked once the correct x-ray was found. Equally if cover had been declined because of an omission or mistake by the claimant, that should not preclude the claimant, at a later date, seeking to have that error corrected.
[48] The next submission for Ms Gilmore was that ACC is bound by the review decision of 2011 where it was held that ACC was liable to provide entitlements in respect of the applicant’s accident in 2000. Section 147 of the Act provides that a review decision is “binding on the applicant and the Corporation”.29 Ms Gilmore argues that all relevant evidence was available to ACC at the time of the 2011 review and it is therefore precluded from now asserting that there was no accident and that it was mistaken.
[49] However, that proposition is not seriously arguable in light of the provisions of s 65 which is worded expansively to cover any decision by the ACC. In any event, it is clear that the new evidence relied upon the ACC in making its decision under s 65 was obtained after the 2011 review. It is therefore incorrect to assert that all relevant evidence was available to ACC at the time of the 2011 review.
[50] I am satisfied, therefore, that there is no arguable question of law that Bartels has been incorrectly applied. The Judge clearly understood the test in Bartels, and, more broadly, the legal test for a revocation decision under s 62, but made a factual finding which was open to him on the evidence.
Evidential matters
[51] The second ground of Ms Gilmore’s application for leave is that it is arguable
that the Court disregarded relevant evidence which supported Ms Gilmore’s position.
[52] Specifically, counsel for Ms Gilmore said the Judge wrongly disregarded the evidence of Professor Theis on the causation issue and said the opinion of the experts was irrelevant to the causation issue. In this regard he submitted that the documentary evidence did not show that no accident had occurred. Rather the documentary record was “inconclusive” and there were substantial gaps in the documentary records. In those circumstances, and where the experts were not agreed as to whether the particular injury had occurred, it could not be said that the decision to grant cover made in 2001 was “clearly wrong”.
[53] However, I do not accept that there is an arguable case that the Judge ignored the reports of Professor Theis (or of Dr Borowczyk). Instead the Judge dealt with those experts’ evidence, but did not accept that their evidence cast doubt on ACC’s revocation decision. In particular, the Judge recorded that they:
(a) relied uncritically upon Ms Gilmore’s account of the trampoline
accident;
(b)did not address the inconsistency with the contemporaneous documentary evidence;
(c) ignored Ms Gilmore’s recorded history of headaches that predated any accident in October 2000;
(d)ignored the history of other accidents suffered by Ms Gilmore, including falls from horses as a child;
(e) could not give evidence that such symptoms related to the trampoline accident in 2000.
[54] I am therefore satisfied there is no arguable basis for saying the Judge ignored those expert opinions and no question of law arises on this count either.
Conclusion
[55] I accept that, for the purposes of leave, it is not necessary to show that a decision was wrong, but only that there is an arguable question of law which is of sufficient importance to outweigh the cost and delay of a further appeal. However, in this case I consider no seriously arguable question of law arises, nor can it be said there is any factor which the District Court did not take into account. Instead, I consider the matters sought to be raised are, in substance, questions of fact and where the findings made were open to ACC, and to the District Court Judge, on the materials before them. For that reason, I do not need to go on to consider whether, in the exercise of my discretion, leave should be granted.
[56] The application is therefore dismissed. Counsel may file memoranda if there is any issue as to costs.
Solicitors:
Andrew Beck, Barrister, Wellington
Young Hunter, Christchurch
15