Harvey v Accident Compensation Corporation

[2023] NZHC 489

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-000611

[2023] NZHC 489

UNDER

The Accident Compensation Act 2001

IN THE MATTER

of an application for special leave to appeal under section 162

BETWEEN

NATHAN JOHN HARVEY

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

9 February 2023

Appearances:

B H Woodhouse for Applicant

C J Curran and N J Fenton for Respondent

Judgment:

13 March 2023

JUDGMENT OF GRICE J

(Application for special leave to appeal)

Introduction

[1]    This is an application for special leave to appeal against a decision of the District Court upholding an Accident Compensation Corporation (the Corporation) review decision declining Mr Nathan Harvey weekly compensation.1 An application for special leave to appeal was declined in the District Court.2

1      Harvey v Accident Compensation Corporation [2022] NZACC 23 [the substantive decision]. The decision of the reviewer is dated 24 July 2018.

2      Harvey v Accident Compensation Corporation [2022] NZACC 170 [the special leave decision].

HARVEY v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 489 [13 March 2023]

[2]    The facts underlying the claim for weekly compensation are not in dispute and are set out in the substantive decision. The following summary outlines the general background to the claim.3

[3]    Prior to his injury, Mr Harvey worked as a cray fisherman. In 2011, Mr Harvey tripped and injured his back on a boat, and was granted cover by the Corporation.  Mr Harvey injured his back again in November 2013 by falling backwards on a boat and was again granted cover.    In February 2014, the Corporation began paying     Mr Harvey weekly compensation. Mr Harvey continued to feel pain and his symptoms did not resolve. However, in May 2014, Mr Harvey’s orthopaedic surgeon, Mr Michael O’Malley, wrote to the Corporation saying that the 2013 injury had caused a disc prolapse, but that this had now been resolved. Instead, Mr O’Malley believed Mr Harvey’s symptoms at that point were caused by an issue with his sacroiliac joint, which was due either to his initial injury or the stiffness induced by the disc prolapse. On 10 June 2014, Dr Kevin Tyree provided a medical certificate to the Corporation stating that Mr Harvey was fit to return to work on 24 June 2014. Mr Harvey was then advised by the Corporation that his weekly compensation had ended, with effect from 23 June 2014.

[4]    Following this, Mr Harvey reported that he had improved and was more physically able. By 2015, however, the pain had returned. In June 2016, Mr Harvey was again declared unfit for work for a period of two weeks. Mr Harvey has not worked since.

[5]    In mid-2017, the Corporation contacted Dr Tyree and Mr O’Malley to comment on Mr Harvey’s inability to work. Dr Tyree commented that Mr Harvey had a disc prolapse and a right sacroiliac issue. Mr O’Malley, however, stated that he thought it unlikely that the current symptoms from the lower back pain were from the initial 2013 injury. On that basis, on 12 September 2017 the Corporation wrote to  Mr Harvey to say that it was unable to pay him compensation. Mr Harvey then began review proceedings in June 2018. The initial review was dismissed and an appeal was lodged. Mr Harvey continued to collect further medical opinions regarding his

3      For a full discussion of the facts, see the substantive decision, above n 1, at [2]–[38].

symptoms. By 2021, a musculoskeletal specialist, Dr Iain Bell, commented that he believed Mr Harvey’s symptoms were due to sensitisation caused by the initial 2013 injury. This was rejected by the Corporation’s Clinical Advisory Panel (CAP), who formed the opinion that the issues were caused by mild age-related progression of  Mr Harvey’s disc prolapse. Dr Bell reiterated his view, and Mr Harvey’s proceedings continued.

The issues on appeal

[6]    Special leave to appeal is sought on the grounds that the decision is wrong in law and the Judge erred by:

(a)failing to adopt the correct test for causation;

(b)failing to consider and determine whether the applicant’s covered injury was one of the causes of his incapacity; and

(c)rejecting the evidence of Dr Bell without a proper basis for doing so.

[7]    The application for special leave states that the proposed questions of law are seriously arguable as they relate to the general interpretation of the Accident Compensation legislation and the correct approach to causation, and that the case involves issues of sufficient importance to outweigh the cost and delay of a further appeal.

Principles in relation to special leave

[8]    Pursuant to s 162 of the Accident Compensation Act 2001 (the Act), a party may seek special leave of the High Court to appeal against a decision of the District Court on a question of law only.

[9]    The principles in relation to the application for special leave are well-established. The threshold sets a high bar to be met. Special leave is not lightly

granted, not only because leave has already been declined once in the lower court, but also because the role of this court on a second appeal is not broadly corrective.4

[10]   As the High Court observed in Ellwood v Accident Compensation Corporation:5

[10]      An applicant for special leave is required to establish that there is a question of law that is capable of bone fide and serious argument, and that it arises in a case which involves some public or private interest of sufficient importance to outweigh the delay and cost of a further appeal. It will usually be necessary for an applicant to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there are some reasonable prospects of success.

Submissions

[11]     Ms Woodhouse for Mr Harvey says that Judge Spiller, in his substantive decision, erred in two ways, first by failing to adopt the correct test for causation, and secondly by failing to consider and determine whether Mr Harvey’s covered injury was one of the causes of his incapacity.

[12]     The applicant says the correct test for causation is based on the authority of Ambros v Accident Compensation Corporation.6 There the court said factual causation was established where “more likely than not that, absent the error, he or she would have avoided the injury”.7

[13]     Ms Woodhouse points to the High Court’s comments in Thompson v Accident Compensation Corporation noting the following:8

[39]      A court faced with a treatment injury claim that requires a causation analysis would be expected to carefully assess:

(1)Whether the applicant had discharged the legal and evidential burden of establishing his or her personal injury was caused by treatment. While the legal burden remains with the claimant, the evidential burden may shift to ACC where a claimant adduces some evidence of causation …

4      Atapattu-Weerasinghe v Accident Compensation Corporation [2017] NZHC 142 at [2].

5      Ellwood v Accident Compensation Corporation [2012] NZHC 2887 (footnotes omitted).

6      Ambros v Accident Compensation Corporation [2007] NZCA 304, [2008] 1 NZLR 340.

7 At [24].

8      Thompson v ACC [2015] NZHC 1640, [2015] NZAR 1163 (footnotes omitted).

(2)Whether causation has been established by all relevant evidence, including valid inferences and evidence relating to proximity. Causation is not necessarily determined on the basis of expert evidence except where the expert evidence establishes there is no connection between the treatment in question and the claimant’s personal injury …

[14]     Counsel for the applicant went on to refer to the comments of the Court of Appeal in Ambros reiterating that the court’s assessment of causation could differ from expert opinion and the court can infer causation in circumstances where experts cannot.9 As the Court stated, robust inferences of causation may be drawn by the courts in cases of uncertainty.10

[15]     The applicant also pointed to the decision of W v Accident Compensation Corporation, which clarified that where there are multiple contributions to a claimant’s injuries, the decision-maker should ask if the claimant’s covered injury “materially contributed” to the injuries suffered.11 If that is the case, the claimant will have established the basis for cover. The Court went on to say:

[86] W did not need to establish a direct causal link between her physical injuries and her mental injuries in order to qualify for cover under s 26(1)(c) of the Act … what was required was an assessment of whether or not W satisfied the “but for” test and whether her physical injuries contributed in a material way to her mental injuries.

[16]     Ms Woodhouse submitted that while that case concerned mental injury, the reasoning is applicable to other situations involving multiple causation. She said it is therefore not necessary to establish that a particular injury is the sole cause of incapacity. It is sufficient that it is a contributing factor.

[17]     The applicant submitted that the District Court Judge failed to ask the correct questions, that is, whether Mr Harvey would not be incapacitated “but for” the 2013 injury, and whether the 2013 incident was a “material contributing factor” to his incapacity. Ms Woodhouse submitted that the Judge’s error is illustrated by his conclusion that there had to be a “direct causal nexus” between the injury and the incapacity as follows:12

9      Ambros, above n 7, at [67].

10 At [67].

11     W v Accident Compensation Corporation [2018] NZHC 937, [2018] 3 NZLR 859 at [68].

12     The substantive decision, above n 1.

[62]  In light of the above considerations, the Court finds that Mr Harvey  has not established a direct causal nexus between the covered injury which was suffered in the November 2013 accident and the physical condition which caused his later incapacity …

[18]     Ms Woodhouse submitted that the 2013 incident marked a turning point for Mr Harvey, and it was the start of the major back problems which ultimately saw him unable to work. She said the evidence of Dr Bell provided substantial support for the claim that the 2013 incident materially contributed to Mr Harvey’s incapacity. In addition, she said that given Mr Harvey had provided medical evidence supporting a causative link, the evidentiary burden has shifted to the Corporation to show that the 2013 incident was not a factor contributing to his incapacity. Ms Woodhouse submits that the evidence from the Corporation was equivocal at best and was not sufficient to rebut the report from Dr Bell. Ms Woodhouse pointed to the comments of the CAP that the cause of the lumbar spine and right leg symptoms was unknown.13

[19]     The applicant also says the report of Dr Bell was rejected by the Judge without proper reasoning. Ms Woodhouse submitted it was the only evidence offering a positive explanation for the incapacity and was not directly contradicted by any experts for the Corporation. She says it was therefore incumbent on the Court to explain why it did not accept Dr Bell’s conclusions. She referred to the High Court’s comment in Thompson v Accident Compensation Corporation that while there was no universal rule concerning the extent to which a Court should provide reasons:14

… Judges hearing ACC appeals must do what they can to ensure the parties can understand why an appeal has either been allowed or dismissed. The extent to which reasons are required depends on the context.

[20]     The Corporation responds to the causation arguments in two ways. First, regarding the Judge’s referral to a “direct causal nexus,” Mr Curran for the Corporation submits this was to explain Mr Harvey’s need to demonstrate that it was a covered accidental injury from 2013 that was in fact a cause of his present incapacity so as to qualify for weekly compensation, as opposed to any degenerative or underlying conditions (which would not qualify).

13     Report of Clinical Advisory Panel, 13 September 2021, at 4.

14     Thompson v Accident Compensation Corporation, above n 8, at [40].

[21]     Secondly, Mr Curran submits that even if the Judge’s use of language was inaccurate, his conclusion on causation is not affected by any error of law. This is because the Judge had found that Mr Harvey had not established a necessary causal link between his ongoing incapacity and his November 2013 covered injury. That was a finding of fact and therefore was fatal to Mr Harvey’s application for special leave, which is limited to questions of law.

[22]     Mr Curran further submits that no seriously arguable question of law arises on the facts of Mr Harvey’s case. He says Mr Harvey has not in any event established that this case is of sufficient public or private importance to justify the granting of special leave, nor does it carry reasonable prospects of success.

[23]     In relation to Dr Bell’s evidence, Mr Curran submitted there was ample evidence for the Judge’s finding and he gave appropriate reasons for preferring the evidence of the other specialists as against that of Dr Bell.

Analysis

[24]     I am of the view that the Judge made no error of law in relation to his approach to causation. This is apparent from the substantive decision.

[25]      First, the Judge correctly referred to the relevant authorities, including the discussion in Ambros of the requirement that a plaintiff must prove causation on the balance of probabilities.15 Clearly, he had that authority firmly in mind.

[26]     Secondly, while the Judge did refer to “a direct causal nexus”, this was reflecting the use of the words in the case of Gazzard v Accident Compensation Corporation.16 That case involved a claimant who had suffered an injury to his back while working on a sheep farm in 1989. His weekly compensation had been cancelled on the grounds that the ongoing incapacity was not a consequence of that back injury. In upholding the Corporation’s decision to cancel Mr Gazzard’s entitlements,

15 The substantive decision, above n 1, at [43], quoting Ambros, above n 6, at [65] and [67].

16 Gazzard v Accident Compensation Corporation  DC Ōtepoti | Dunedin 313/2001, 9  November 2001 [Gazzard (DC)], upheld on appeal in Gazzard v Accident Compensation Corporation HC Te Whanganui-a-Tara | Wellington CIV-2005-485-00238, 22 May 2006 [Gazzard (HC)].

Judge Beattie identified the distinction between incapacity caused by degenerative conditions and that caused by covered injuries, and made the point that the incapacity must be caused by or as a consequence of the personal injury by accident.17 On appeal, the High Court rejected criticisms of Judge Beattie’s analysis and noted that, while the Judge may not have specifically referred to the applicable legislative provisions, he nonetheless applied the correct approach for considering causation, and his findings of fact were sufficient to satisfy the relevant test.18 Miller J in the High Court stated:19

… When the decision is considered as a whole, I am satisfied that Judge Beattie was looking for any causal connection between injury and incapacity. He found none, for good reason. The medical evidence strongly supported the conclusion that, whatever the position previously, by 1998 degeneration was the only cause of Mr Gazzard’s incapacity …

[27]     Mr Harvey relies on the decision in W v Accident Compensation Corporation as authority for the proposition that requiring a “direct causal link” is a legal error.20 However, the relevant question in that case was whether a physical injury had to be the proximate or immediate cause of a mental injury in order for the latter to attract cover under s 26(1)(c) of the Act.21 The District Court had found that such a “direct” (meaning immediate or proximate) causal link between the physical and mental injury must exist. The High Court rejected that conclusion. However, it also said that the use of the word “direct” was helpful in carrying out the causation inquiry in some situations, and gave the example of its use by Dobson J in Hornby v Accident Compensation Corporation.22 In W v Accident Compensation Corporation, Collins J explained that Dobson J was using the word “direct” in the sense that the physical injury must be a cause of the mental injury, “not merely an indirect exacerbation of a pre-existing mental injury.”23 Collins J noted that “direct” there was not being used in the sense that “the cause must be immediate or proximate”.24

17     Gazzard (DC), above n 16, at [29].

18     Gazzard (HC), above n 16, at [22].

19 At [22].

20     W v Accident Compensation Corporation, above n 11.

21 At [60].

22     Hornby v Accident Compensation Corporation HC Te Whanganui-a-Tara | Wellington CIV-2008- 485-763, 10 Hepetema | September 2008.

23     W v Accident Compensation Corporation, above n 11, at [60].

24 At [60].

[28]     In my view, the Judge here was using the word “direct” in the same sense as Dobson J in Hornby.  The Judge in this case referred to Gazzard  in the context of  Mr Harvey’s need to show that a cause of the ongoing disability was the covered 2013 injury, as opposed to a degenerative or underlying condition. This is clear from the Judge’s reasoning.

[29]     However, even if the Judge was using “direct causal nexus” in an incorrect manner in relation to causation (which I do not think he was), any technical inaccuracy did not result in a material error of law.  The Judge found as  a matter of fact  that Mr Harvey had not established a necessary causal link between his ongoing incapacity and his November 2013 covered injury.25

[30]     The Judge had ample evidence upon which to reach that determination, in particular the expert evidence of the attending orthopaedic surgeon, Mr O’Malley, and that of the CAP. These experts considered a causal link between Mr Harvey’s November 2013 injury and his  current  incapacity  was  unlikely.  The quote that  Ms Woodhouse referred to from the 13 September 2021 CAP report, namely that the cause of the lumbar spine and right leg symptoms was “unknown”, must be taken in this context.

[31]     The Judge had comprehensively set out the relevant medical history in a considered way. He had also carefully set out Dr Bell’s evidence and views carefully and acknowledged his opinion. However, in his analysis of the issue of causation he summarised the evidence that he relied on in preference to that of Dr Bell.26 This included notes of GP visits, reports provided by Mr O’Malley and Mr Harvey’s physiotherapist, medical certificates provided by Mr Harvey’s doctor, MRI scans and the reports of two radiologists, and the report of the CAP, which the Judge noted comprised four orthopaedic surgeons, a general surgeon and an occupational and environmental medicine specialist, and which had:27

… concluded that the cause of Mr Harvey’s current low back and right leg problems  was  most   unlikely  to  have  been  the  accident   suffered  on   20 November 2013, and was likely to have resulted from multiple factors. The

25     The substantive decision, above n 1, at [62], relying on the factual findings at [56]–[61].

26     At [56]–[61].

27 At [61].

CAP pointed to the above history of Mr Harvey’s back condition, and the MRI scans which showed mild age-related progression of the disc degenerative disease, which commonly occurred in people with physically strenuous jobs. The CAP assessed that a physical cause for Mr Harvey’s symptoms, noted in Dr Bell’s report, could not be confidently established.

[32]     On the entirety of the evidence before the Court, his Honour found that a causal link had not been shown as required between the covered injury and the incapacity. This factual finding is well-supported by the evidence.

[33]     In summarising the evidence, he relied on in making his finding, the Judge provided  adequate  reasons  as  to  why  he  preferred  the  medical  evidence  of   Mr O’Malley, the CAP and the other specialist evidence to that of Dr Bell. That is a factual matter.28 An error of law may be the result of a factual finding if the finding was clearly untenable and unsupportable, or the Court came to a conclusion that it could not reasonably have reached on the evidence before it.29 However, that is not the case here. The Judge’s finding was clearly available on the evidence before him, and the Judge gave adequate reasons for reaching this finding. The Judge made no error in this regard.

Conclusion

[34]     Mr Harvey has not identified a seriously arguable question of law. Special leave to bring a second appeal is not lightly granted. In this case, even if Mr Harvey could identify a seriously arguable error of law, he has not established that the special leave threshold is met. This requires a matter of public or private interest of sufficient importance to outweigh the delay and cost of another appeal.30 The issue of causation is an important issue, but no question of law arises in this case in that regard that has not already been dealt with in earlier cases. The appeal grounds are largely factual and contest the Judge’s assessment of the evidence. No doubt the claim to weekly compensation is important to Mr Harvey personally, but that is true in the case of most claims.

28     Dela Rosa v Accident Compensation Corporation [2019] NZHC 2657 at [34] and [71].

29     Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [26].

30     Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].

[35]     In addition, the claim for weekly compensation has low prospects of success. The factual findings are that no causal link has been established between the November 2013 injury and Mr Harvey’s current incapacity as a matter of fact. The evidence supports that conclusion. The findings in the substantive decision are consistent with  those  of  the  Reviewer  and  I  agree  with  the  comments  of  Judge McGuire in the special leave decision declining the application for leave to appeal that these findings were open to the Judge.31

[36]The application for special leave to appeal is declined.

Costs

[37]The Corporation does not seek costs. Accordingly, no order is made as to costs.

Grice J

Solicitors:

Beatrix Woodhouse Barrister, Wellington Shine Lawyers NZ Ltd, Christchurch

31     The special leave decision, above n 2, at [33]–[34].