Matthews v Accident Compensation Corporation
[2019] NZHC 1509
•1 July 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2018-404-1087
[2019] NZHC 1509
BETWEEN MAYBELLE KAPETA MATTHEWS
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 19 March 2019
(Further submissions received 22 and 29 March 2019)
Appearances:
A Beck for Appellant
A Butler for Respondent
Judgment:
1 July 2019
JUDGMENT OF GRICE J
Contents
Introduction [1]
Background [3]
Personal injuries and medical history [3]
ACC applications and proceedings [10]
District Court decision [17]
Standard of appeal [19]
Grounds for appeal [21]
What caused Mr Aria’s inability to work? [25]
Findings [36]
Burden of proof [37]
Conclusion [39]
Costs [40]
This decision [40]
Leave decision [43]
MATTHEWS v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1509 [1 July 2019]
Introduction
[1] Ms Matthews was granted special leave to appeal a 2017 decision of Judge Mathers.1 In that decision she dismissed Mr Aria’s appeal against an Accident Compensation Corporation (ACC) review decision.2 The issue in both decision was Mr Aria’s entitlement to weekly compensation under the Accident Compensation Act 2001 (the Act) following personal injury caused by an insect bite in 2007.
[2] Mr Aria, tragically died in a boating accident in 2016, before the District Court heard his appeal. Ms Matthews, as Mr Aria’s representative, was granted leave to be substituted as the appellant in these proceedings.3
Background
Personal injuries and medical history
[3] In 1974, Mr Aria was involved in a motorcycle accident that caused serious soft tissue and vascular injuries to his right leg. In particular, the internal damage compromised a deep artery known as the popliteal artery in the vicinity of the knee. This affected the blood circulation in the lower leg. He required several surgeries to help correct some of this internal damage.
[4] The first surgery involved an arterial bypass and a skin graft. The healing process was not straight forward and Mr Aria suffered a haematoma and infection. He also underwent a subsequent surgery in which an attempt was made to stretch his Achilles’ tendon. This surgery was necessary as the tendon had shortened causing his ankle and foot to fix in a pointed position (plantar flexion). Following both surgeries Mr Aria was unable to fully extend his right knee (fixed flexion deformity) and his right ankle remained in its fixed position (it was held in an equinus). He spent three to four months in hospital.
1 Matthews v Accident Compensation Corporation [2018] NZHC 2769.
2 Aria v Accident Compensation Corporation [2017] NZACC 38 (DC).
3 Matthews v Accident Compensation Corporation [2018] NZHC 2769 at [2]. I refer to Mr Aria as the claimant throughout.
[5] Mr Aria had to manage around his deformity. He had to walk on the tip of his toes on his right foot. Mr Aria was about 17 years of age at the time of the injury and not employed.
[6] In 1975, Mr Aria gained employment at a meat processing plant. Despite his limp, he worked full time for most of the period until 2008. He trained as a meat boner.
[7] He was employed as a boner in a meat processing works when in April 2007 an insect bite led to ulceration of his right leg that would not heal. It was found that the popliteal artery was almost totally occluded with little collateral circulation. A further bypass was required.
[8] The first surgery was attempted in June or July 2008 by Dr Caldwell, a vascular surgeon. It failed due to extensive scaring and fibrosis of the artery. The existing ulcers would not heal and new ulcers appeared on Mr Aria’s ankle (medial malleolus).4 He warned Mr Aria that if his next attempt at restoring some circulation was unsuccessful the lower leg might need amputation. In September 2008, Dr Caldwell’s further attempt to bypass the damaged popliteal artery was successful.5 The ulcers ultimately healed, but the deformity causing an inability to flex Mr Aria’s knee became worse and the skin was rendered more delicate.
[9]Mr Aria has not worked since 2008.
ACC applications and proceedings
[10] Mr Aria was declared unfit to work on 20 May 2008 by his general practitioner (GP) Mr Garlik. There is a lack of clarity in the records as to whether Mr Aria applied for compensation in June or July 2008 for the 1974 injury or the 2007 injury. In any event, an application was made and approved in relation to the 1974 personal injury alone.
4 The bony bump on the inside of the ankle joint.
5 The surgery was described as a graft being “a right superficial femoral to anterior tibial by pass using the left lower limb long saphenous vein as a donor vessel”.
1974 personal injury payments
[11] Mr Aria was paid weekly compensation in relation to the 1974 personal injury from October 20086 until December 2009. This was a mistake by ACC as Mr Aria had not been employed at the time of the 1974 personal injury. Once ACC realised that the weekly compensation payments were being made in error it gave notice it was terminating them in September 2009.7 Mr Aria’s review of this decision failed in April 2010.
[12] Mr Aria appealed this decision to the District Court in 2015. It was at this stage new arguments were made in relation to Mr Aria’s incapacity and its cause. Specifically, now it was argued it was the 2007, and not the 1974 injury, that had rendered Mr Aria unable to work. This submission spawned a new investigation in 2015 by ACC into whether the 2007 injury had indeed been the cause of Mr Aria’s incapacity.
2007 personal injury payments
[13] In 2015 ACC investigated whether Mr Aria would be entitled to weekly compensation in relation to the 2007 injury as he was employed at the time of being injured. As part of this process they retained an occupational medicine specialist, Dr Wall, to assess Mr Aria. He reported back in August 2015.
[14] In November 2015 ACC concluded that Mr Aria was entitled to compensation for the 2007 personal injury up to December 2009 when ACC had ceased the payments made in error based on the 1974 personal injury. ACC, in that decision, said the 2007 personal injury had fully healed earlier than December 2009. Therefore, any incapacity Mr Aria had from December 2009 onwards was due to the 1974 personal injury. ACC said this was consistent with 2009 information, which indicated that the cause of Mr Aria’s ongoing problems was the 1974 personal injury. Therefore, the payments correctly ceased in December 2009.
6 Although the payments were backdated to May 2008.
7 ACC relied on the approach adopted by the District Court in Giltrap v Accident Compensation Corporation DC Wellington 141/2006, 9 June 2006, later affirmed in Accident Compensation Corporation v Vandy [2011] 2 NZLR 131 (HC).
[15]Mr Aria sought a review that decision, which was heard in February 2016. On
16 February 2016 the reviewer confirmed ACC’s decision to stop weekly compensation.
[16] Mr Aria appealed to the District Court. In a decision dated 11 April 2017 District Court dismissed that appeal and agreed with the conclusions reached by the reviewer.8 On 17 May 2018 the District Court declined an application for leave to appeal to this Court.9 On 25 October 2018 this Court granted special leave for the appeal to be heard here.10
District Court decision
[17] In her April 2017 decision, the Judge framed the issue in this case as whether Mr Aria’s incapacity as at December 2009 was caused by the 2007 or 1974 injury.11
[18] The Judge accepted that Mr Aria was incapacitated from May 2008 to at least mid-way through 2009 by the 2007 injury.12 She concluded on the evidence, however, by the end of 2009 the ulcers caused by the 2007 injury had healed. She concluded that “what the late Mr Aria was unfortunately left with was the result of the 1974 injury”.13
Standard of appeal
[19] Appeals of this nature are confined to questions of law.14 An appeal on a question of law cannot be successful where the correct law was used with reference to the unique facts of a case.15 Nevertheless, the “ultimate conclusion of a fact-finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law”.16 An error of this latter kind is rare. It may occur where “… the evidence is inconsistent with and contradictory of the determination[,]… the true and only
8 Aria v Accident Compensation Corporation, above n 2.
9 Aria v Accident Compensation Corporation [2018] NZACC 73 (DC).
10 Matthews v Accident Compensation Corporation, above n 1.
11 Aria v Accident Compensation Corporation, above n 2, at [23].
12 At [24].
13 At [39].
14 Accident Compensation Act, s 162.
15 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25].
16 At [26].
reasonable conclusion contradicts the determination” or there is no evidence to support the determination under appeal.17
[20]I also note Collins J’s comments in W v Accident Compensation Corporation
in reference to statutory interpretation in this area:18
[33] It has been said that the interpretation of Accident Compensation legislation “is not to be undermined by an ungenerous or niggardly approach to the scope of the cover provided”.19 This sentiment does not, however, detract from the need for courts to interpret all legislation by reference to its text and in light of its purpose.20 However, as W’s claim is to be assessed in the context of the “social contract” that underpins the accident compensation scheme (the scheme),21 she should not be denied cover except where the language of the statute is clear and unambiguous.22
Grounds for appeal
[21] Leave to appeal the District Court decision was granted by the High Court on the following questions of law23
(i)Can a further physical personal injury that aggravated a pre-existing physical personal injury be a cause of incapacity under s 103 and cl 32 of Schedule 1 of the Act?
(ii)If so, was Mr Aria’s inability to return to work caused by the aggravation of his pre-existing knee flexion and/or ankle equinus (as opposed to the original personal injuries)?
[22] In addition, at the hearing of this appeal Mr Beck raised a number of additional points:
17 Edwards v Bairstow [1956] AC 14 (HL) at 36.
18 W v Accident Compensation Corporation [2018] NZHC 937, [2018] 3 NZLR 859.
19 Harrild v Director of Proceedings [2003] 3 NZLR 289 (CA) at [19]; see also Accident Compensation Corporation v Mitchell [1992] 2 NZLR 436 (CA) at 438.
20 Interpretation Act 1999, s 5.
21 Accident Compensation Act, s 3.
22 See Murray v Accident Compensation Corporation [2013] NZHC 2967 at [36].
23 At [14].
(i)The fragility of the skin which had been compromised by ulceration was a material contributing factor to Mr Aria’s ongoing incapacity beyond December 2009.24
(ii)The District Court Judge did not apply the correct test or burden of proof when she found the 1974, and not the 2007, injury was the cause the ongoing incapacity.
[23] Mr Butler for ACC had prepared his written submissions based on the stated questions of law for which leave had been granted. However, he responded orally to Mr Beck’s points concerning the fragility of the skin.
[24] Mr Beck in reply also raised other new lines of argument at the end of the hearing. Mr Butler objected. I agree with Mr Butler they were raised too late and I do not consider those issues.
What caused Mr Aria’s inability to work?
[25] Mr Beck for Mr Aria says two distinct personal injuries were suffered by Mr Aria. The first was in 1974, when Mr Aria was not employed. Any incapacity due to that personal injury does not qualify for weekly compensation. The second personal injury was caused by the insect bite in 2007. At that time Mr Aria was in full time employment. Mr Beck says the 2007 personal injury was a material contributing factor to Mr Aria’s ongoing incapacity. In his argument, Mr Aria would therefore have been eligible for weekly compensation beyond December 2009.
[26] Mr Beck argues two elements of the 1974 injury were potentially aggravated by the 2007 injury:
(i)the knee flexion or ankle equinus; and
(ii)the fragility of the skin.
24 My references to the “fragility of the skin” refers to the skin on the compromised lower leg.
[27] Turning briefly to the evidence, I note the significance of each of the following matters in forming my conclusion.
[28] Dr Caldwell noted in a report to ACC on 9 September 2008 that Mr Aria had “presented with significant ulceration of the lower leg which was secondary to minor trauma on a background of arterial insufficiency which was secondary to his previous injury”. Mr Caldwell concluded “in my opinion the ulceration and problems with his right leg are predominantly related to past trauma”. Dr Caldwell then referred Mr Aria to an orthopaedic consultant on 2 February 2009 and noted that “the knee flexion seems to be a little worse since his vascular procedure”.
[29] In May 2009 Dr Chris Walls an occupational medical specialist, undertook an initial medical assessment of Mr Aria. In his report of he noted that the extent of the equinus in his right ankle “has increased” from before the operation. Dr Walls concluded that Mr Aria had “developed arterial insufficiency” which lead to skin ulceration. He said the arterial bypass graft had reversed that to some extent.
[30] On 15 July 2009, at a follow up clinic, Marion Gibson, a vascular nurse on the vascular unit at Middlemore Hospital, noted Mr Aria’s “main concern is regarding the fixed flexion in his right knee. I understand this is an ongoing issue … [it] became worse following his fem[oral] distal graft”.
[31] It was common ground that the popliteal artery had been badly damaged by injury and subsequent treatment in 1974 and had occluded to compromise circulation in Mr Aria’s lower leg. Circulation was restored to some extent by Mr Caldwell’s graft repair in September 2008, following an unsuccessful attempt to achieve that in June or July 2007. Once the circulation had increased following the arterial bypass the old and new ulcers healed and no more formed.
[32] In short, the 2008 arterial surgery was only required because of the circulation problems which were entirely due to the 1974 personal injury. The restoration of the circulation to the leg separately allowed the healing of the ulcers. There was no suggestion anything went wrong during that surgery. The 2008 arterial bypass surgery was solely to increase circulation compromised by the 1974 personal injury and
treatment. The requirement for surgery may have been accelerated by the ulcers, but this was only because they precipitated the investigation into the circulation. Otherwise, the surgery had no link to the 2007 personal injury.
[33] Once the ulcers had healed the only knee/ankle incapacity was that caused by the 1974 personal injury. The 2008 surgery was triggered by damage caused by the 1974 injury and any aggravation flowing from the 2008 surgery was from the 1974, and not the 2007, injury.
[34] Similarly, the fragility of the skin was apparently due to the circulatory problems flowing from the 1974 personal injury, the 1974 skin graft and healed ulcers. Mr Walls did not suggest the skin problems caused incapacity other than Mr Aria needing to take particular care of the skin on the lower leg and that was a factor to take into account for an impairment payment. It was not for the purposes of an incapacity assessment. I note the limited evidence and analysis on this point and the information available does not assist Mr Beck. I dismiss it.
[35] In my view the Judge made no error in reaching her conclusion that the incapacity from Mr Aria’s knee and ankle problems were due to the 1974 personal injury. Once the ulcers had healed there was no other contribution to the incapacity.
Findings
[36] Following my findings above, neither ground of appeal for which leave was granted arises. Both points are moot and it is not necessary to consider them further.
Burden of proof
[37] Mr Beck submits that the Judge failed to address s 117 of the Act, which deals with the circumstances in which ACC may suspend or cancel an entitlement. Mr Beck submits that under that section the burden of proof rests on ACC to show a proper basis for cancelling the entitlement.25
25 Referring to Ellwood v Accident Compensation Corporation [2007] NZAR 205 (HC).
[38] The Judge did not express her conclusion with express reference to the burden of proof, rather she made an assessment on the basis of the medical evidence as a whole. In light of my assessment of the facts above, I am satisfied that there was sufficient evidence available that it was open to the Judge to conclude that the 2007 injury was no longer operative.
Conclusion
[39]The Judge made no errors on questions of law.
Costs
This decision
[40] Mr Butler for ACC indicated it would not seek costs in the event that the appeal was not successful.
[41] There was no suggestion of any application for costs by Mr Beck in the event the appeal was unsuccessful. However, if I am wrong any application and submissions should be filed on or before three working days from the date of delivery of this judgment.
[42] In the meantime, no order for costs is made in favour of the successful party, ACC.
Leave decision
[43] In granting leave, Collins J noted that costs in relation to the special leave application were reserved and would be determined in conjunction with this appeal.26
[44] In view of ACC’s approach to costs on the substantive appeal that costs on the leave application may well be agreed between the parties. Failing agreement, I direct submissions on the issue of costs on the leave application as follows:
26 At [15].
(i)ACC is to file and serve a memorandum three working days from the date of delivery of this judgment;
(ii)Ms Matthews is to file and serve a memorandum on or before a further three working days;
(iii)Any reply by ACC is to be filed on or before a further working day.
Grice J
Solicitors:
Hazel Armstrong Law, Wellington
Accident Compensation Corporation, Wellington
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