Martin v Accident Compensation Corporation

[2017] NZHC 957

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-993 [2017] NZHC 957

IN THE MATTER

of an appeal under s 162 of the Accident

Compensation Act 2001

BETWEEN

ARTHUR DEAN MARTIN Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	11 May 2017
Appearances:	A C Beck for Appellant H A Evans for Respondent
Judgment:	11 May 2017

JUDGMENT OF FAIRE J

This judgment was delivered by Justice Faire on 11 May 2017 at 4 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Young Hunter, Christchurch

Counsel:            A C Beck, Greytown

MARTIN v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 957 [11 May 2017]

[1]      The appellant, Mr Martin, appeals the decision of Judge L G Powell delivered on 29 May 2015, special leave to appeal having been given by Judge A N MacLean on 24 November 2016.   At issue is whether the appellant had vocational independence.

[2]      The appellant suffered a left wrist laceration in an accident injury in 1991. That led to treatment and physical rehabilitation.   He returned to work but was unable to return to his former work as a chef.

[3]      On 1 February 2009, he suffered another injury to his left wrist when he hit his wrist with a hammer while working quarrying stone.  An orthopaedic surgeon advised  that  the  appellant’s  diagnosis  of  “left  wrist  regional  pain  syndrome” primarily related to the 1991 accident.   It is accepted that he is no longer able to carry on his pre-injury occupation as a stone merchant.  The appellant, in addition to his injuries is blind in his left eye, has vision limitations in his right eye and suffers from osteoarthritis in his right hip.

[4]      Despite his injuries and condition, the Corporation required the appellant to undertake a variety of assessments in order to explore whether he could work in some other occupation.

[5]      In  a  decision  issued  on  29  July 2011,  the Corporation  declared  that  the appellant had vocational independence in seven types of work.  The appellant sought a review.   On 17 July 2012, the reviewer modified the Corporation’s decision and found that the appellant had vocational independence as a weighbridge operator and as a sales representative (building and plumbing supplies).  The appellant appealed that decision.

[6]      In   the   judgment   under   appeal,   Judge   Powell   found   that   the   sales representative work type was occupationally and medically unsuitable for the appellant but that the weighbridge operator work type was both occupationally and medically suitable.

[7]      The appellant sought special leave to appeal which, as I have indicated, was granted.    Directions  for  the  filing  of  submissions  were  made  in  this  Court  on

20 January 2017.  Those submissions have been filed.  It is appropriate that I set out

the Corporation’s position.  In its submissions, the Corporation stated as follows.

3.The Corporation’s position in this appeal is that it accepts that Judge Powell did err in law on the basis that his Honour was incorrect to require an analysis of the tasks and functions of a particular work type  to  be  “limited  to  the  particular  wording  of  the  relevant worksheet for a specific work type”.   That finding is inconsistent with the statutory requirements under the Accident Compensation Act 2001.

4.        Accordingly the Corporation proposes that:

(a)      the appeal should be allowed with costs on scale in favour of the appellant;

(b)      the case should be remitted back to the District Court for a rehearing of the appeal.

[8]      I am in complete agreement with the position taken by the Corporation in this appeal.  In short, Judge Powell was wrong in law to find as he did that:

[22]     ... for the generic work type approach to have integrity the standard requirements of individual work types must be applied consistently, which in all but the most exceptional cases will require the analysis to be limited to the particular wording of the relevant worksheet for a specific work type.

[9]      What the Court should have done was apply the traditional approach to an analysis of the competing expert evidence which was comprehensively set out by Ronald Young J in Martin v Accident Compensation Corporation.1

Result and costs

[10]     Accordingly, I allow the appeal and quash the decision of 29 May 2015.  The matter is remitted to the District Court for the evaluation of the evidence. The appeal must proceed in the District Court as a re-hearing of the appeal.

[11]     Counsel confirmed in their joint memorandum of 18 January 2017 for this appeal that the appeal is a category 2 proceeding for costs purposes.  Accordingly, I

1      Martin v Accident Compensation Corporation [2009] 3 NZLR 701.

order that the appellant is entitled to costs based on category 2, band B together with disbursements as fixed by the Registrar.

[12]     I add one further matter.  Counsel informed me that the appellant has not had the benefit of ACC cover since the Corporation’s decision of 29 July 2011.  I have outlined the number of steps to date that have been taken.  I record that counsel had indicated to me that they will co-operate to see that there is an early hearing of the matter in the District Court which at the outset I understand should be in July this year.  I express the Court’s hope that an early hearing date can be allocated and that

the appellant’s position can be fully reheard promptly in the District Court.

Faire J