Porter v Accident Compensation Corporation
[2023] NZHC 926
•26 April 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-001775
[2023] NZHC 926
UNDER the Accident Compensation Act 2001 IN THE MATTER
of a special leave application pursuant to s 162 of the Act
BETWEEN
KYE PORTER
Plaintiff
AND
ACCIDENT COMPENSATION CORPORATION
Defendant
Hearing: 20 April 2023 Appearances:
B Hinchcliff for the Applicant F Becroft for the Respondent
Judgment:
26 April 2023
JUDGMENT OF WALKER J
[Application for special leave to appeal]
This judgment was delivered by me on 26 April 2023 at 11 am Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
PORTER v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 926 [26 April 2023]
[1] This is an application for special leave to appeal against a decision of the District Court upholding a decision of the Accident Compensation Corporation (the Corporation) to revoke accident compensation cover.
[2] On 23 September 2019, the Corporation approved Mr Porter’s lumbar spine surgery and cover for lumbar disc prolapse with radiculopathy. The approval notification stated that information had been received from Mr Porter’s treatment providers confirming additional injury(s) caused by an accident in 2005.
[3] In September 2020, following a file review, the Corporation revoked cover and declined loss of potential earnings compensation. In the notification to Mr Porter, it said:
ACC has looked carefully at all the information now available and has decided that this claim should not have been accepted. This is because we received new medical information, including imaging taken at the time of the accident, which does not support a causal link between the accident and the injury.
[4] Mr Porter’s review of those decisions was unsuccessful. He appealed to the District Court. In a reserved judgment issued on 3 May 2022, Judge P R Spiller found that the Corporation correctly revoked cover on the basis that evidence which confirmed there was no disc prolapse following the accident many years earlier had been overlooked. Consequently, he dismissed the appeal.1
[5] Mr Porter’s application for leave to appeal was dismissed by Judge C J McGuire by judgment issued on 25 August 2022.2 The Judge found none of the questions of law identified by Mr Porter are capable of bona fide and serious argument.
[6] The application comes before this Court under s 162 of the Accident Compensation Act 2001 (the Act). The High Court may grant special leave to appeal on a question of law provided that it reaches the threshold required to justify allowing a further right of appeal to this Court.
1 Porter v Accident Compensation Corporation [2022] NZACC 71 at [45].
2 Porter v Accident Compensation Corporation [2022] NZACC 169.
Background
[7] The background is set out in the District Court decision. In summary, Mr Porter fell from a horse in 2005 at the age of 14. He suffered a back injury. He was granted cover for a lumbar sprain at that time. An MRI scan at the time of this accident reported (in part):
There is minor loss of hydration of the disc space between the lowest true lumbar vertebrae and the transitional vertebrae and minor bulging of the disc annulus at this level but this is not compressing emerging nerve routes nor cauda equina. Discs higher up are normal in appearance.
…
Comment: There is a mild band of T2 hyperintensity in the right sacralised transverse process of the transitional lumbosacral vertebra adjacent to the pseudarthrosis formed with the sacrum. Appearances are consistent with a minor injury to the pseudoarthrosis but no definite fracture. No other abnormality seen and no sign of bony injury elsewhere in the pelvis.
[8] Mr Porter suffered intermittent serious pain over the following years. He sought medical treatment each time. There was further MRI and other diagnostic imaging. In August 2019, Mr Porter was admitted to hospital a further time. He was then seen by Mr Barnes, an orthopaedic specialist. Mr Barnes considered that the pain experienced was probably a reflection of permanent nerve damage caused by a disc protrusion suffered in 2005.
[9] In September 2019, Mr Porter decided to proceed with a fusion operation as advised by Mr Barnes. An assessment report and treatment plan seeking funding assistance from the Corporation was completed by Mr Barnes. That request was framed in terms of Mr Porter having suffered a disc protrusion in the 2005 accident. Mr Porter also applied for weekly compensation for loss of potential earnings.
[10] The Corporation approved funding for the fusion surgery. Materially, an internal ACC note dated 9 September 2019 stated:
23/09/2019 Surgery request for lumbar spine has been approved. Strong mechanism of injury in 2005, requiring rescue helicopter. Imaging indicates a malunion (pseudoarthrosis) meaning it is likely there has been a significant injury. It is likely that the disc issues would now be related to that injury, as there was bulging at the time.
[Emphasis added]
[11] The surgery proceeded in October 2019. On 14 February 2020, a medical advisor for the Corporation reviewed the file. He noted that Mr Barnes’ advice and the surgery recommendation was premised on his understanding that no imaging had been undertaken in 2005. This premise was incorrect.
[12] The Corporation followed up with Mr Barnes, providing the 2005 MRI scan and other clinical records. Mr Barnes responded on 24 August 2020 after reviewing that scan, advising:
This does not really help me to explain the cause of his ongoing neck pain and leg pain from the time of that injury. It is still possible, as I speculated, that there was a disc protrusion which was not present on the day of the injury but may have developed over the subsequent weeks because of injury to a disc which progressed to a protrusion.
I am sorry that I simply cannot be any more certain in terms of the aetiology of his chronic back pain and leg pain in light of the scan report you have recovered.
[13] The Corporation’s review concluded that the current evidence did not support a causal relationship between the 2005 accident injury and the current lumbar spine symptoms. Its medical advisors took the view that it was likely that the current changes had arisen due to mechanical stressors related to congenital L5/S1 pseudoarthrosis rather than any disc prolapse suffered in the accident. It revoked cover on 25 September 2020 and declined Mr Porter’s application for loss of potential earnings.
[14]Mr Porter’s review of this decision was unsuccessful.
[15] On the appeal before the District Court, the Corporation filed additional evidence from its Clinical Advisory Panel (CAP). This is an advisory panel consisting of a range of specialists including orthopaedic surgeons and occupational specialists. The CAP acknowledged the noteworthiness of the fall in 2005 and Mr Porter’s difficulties but concluded that a causal link was not established between Mr Porter’s chronic low back pain symptoms, his L4/5 disc abnormalities, his L5/S1 developmental abnormalities and his accident in 2005 (or any other accident or combination thereof in later years). The CAP review report noted:
On 04/05/2005 Mr Porter’s lumbar spine MRI scan reported:
Mild T2 hyperintensity of the right sacralised transverse process of the transitional L5 vertebra adjacent to the pseudoarthrosis formed with the sacrum
Disc dehydration at the lowest levels
No definite fracture and no other bony injury
[16] There was no reference to the “disc bulge” reported by the radiologist which may suggest this was medically unremarkable.
[17] The CAP report recorded that the theory about a disc protrusion developing later was speculative and there is no objective evidence to support the impression Mr Barnes had before he had reviewed Mr Porter’s 2005 MRI scan.
[18] Mr Porter relied on the views of Mr Barnes and Ms Noventa, a musculoskeletal physiotherapist who had previously worked as a clinical advisor in the surgery unit at the Corporation. Like the CAP, she provided a report based on a desktop review of various medical reports including the 2005 MRI and notes, the reports from Mr Barnes and reports from Dr Sprott, the Corporation’s medical reviewer. Mr Barnes’ review has already been noted. Ms Noventa’s report concluded in relation to the 2005 accident (in part):
Although not reporting a disc prolapse changes in the disc were reported. In addition signal changes in the spine indicate there was a significant injury to the pseudoarthrosis of the L5 and the sacrum … I would agree with Mr Barnes that it is likely that there was some injury to the disc at the time of the 2005 covered event which has then progressed over the intervening 14 years.
District Court decision
[19] After summarising the background, the Judge referred to ss 65 and 105 of the Act and the guidance in ACC v Bartels.3 He identified the issue as whether the Corporation had sufficient grounds to revoke cover on the basis that its original decision was made in error. The issue of entitlement to loss of potential earnings flowed from the cover decision.
[20] The Judge acknowledged the views of Mr Barnes and Ms Noventa on which Mr Porter relied. He then set out the considerations leading to his conclusion that the
3 Accident Compensation Corporation v Bartels HC Wellington CIV-2005-486-2072, 14 August 2006.
Corporation’s original decision had been made in error based on evidence overlooked at the time and which confirmed there was no disc prolapse at the time of the accident:4
(a)The April 2005 MRI scan showed a minor injury but no definite fracture, no other abnormality and no sign of bony injury elsewhere in the pelvis. The view of Ms Noventa appeared to be at variance to the wording of the MRI scan report.
(b)The Corporation’s decision in September 2019 to grant cover was taken without knowledge of the April 2005 scan.
(c)The advice of Mr Barnes in August and September 2019 on which the Corporation based its decision in September 2019 was also provided in ignorance of the April 2005 MRI scan and based on his mistaken view that there was permanent nerve damage caused by a disc protrusion in the 2005 accident.
(d)The subsequent advice of Mr Barnes after review of the 2005 MRI scan was revised to one of speculation which did not satisfactorily establish with objective evidence, a causal link between the accident and subsequent disc prolapse.
(e)The Corporation’s medical advisor noted that current evidence did not support a causal relationship between the accident and current lumbar spine symptoms which had arisen independently.
(f)The CAP, comprising four orthopaedic surgeons, a physiotherapist, a sports medicine specialist, general surgeon and occupation and environmental medicine specialist, found no evidence of any persistent anatomical or physiological damage from the 2005 accident. It concluded that the most likely cause of Mr Porter’s L4/5 disc prolapse was disc degeneration caused by congenital abnormalities at his lower lumbar spine.
4 At [39]–[44].
[21] In relation to the claim for loss of potential earnings, the Judge noted that Mr Porter’s incapacity arose because of disc prolapse. As the Corporation correctly decided that Mr Porter’s disk prolapse is not covered, he is consequently not entitled to loss of potential earnings.5
Principles in relation to special leave
[22] The approach on applications for special leave is well established. The Corporation relies in particular on Kenyon v ACC.6 Special leave is not lightly granted for the reason that the role of this Court on a second appeal is not broadly corrective and the purpose of requiring leave is to ensure that scarce judicial time is allocated sensibly.7 Relevantly, an applicant must show that there is a question of law which is capable of bona fide and serious argument. A question of law does not arise where the Court has merely applied law, which it has correctly understood to the relevant facts. The conclusion is the matter for the fact-finding Court unless clearly insupportable.8 Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law.9
[23] Even if a question of law is identified, the Court will exercise the power to grant special leave cautiously.10
Respective arguments
[24] As I apprehend, the argument for Mr Porter is that the 2005 MRI scan is not new evidence in the Bartels sense for two reasons. First, there is cogent evidence that the decision makers at the Corporation had knowledge of it when making the original decision. Secondly, the scan report supports rather than undermines the original finding of injury so that there is no error and no statutory permission to revoke the original decision.
5 At [44].
6 Kenyon v Accident Compensation Corporation [2001] NZHC 1301.
7 Sandle v Stewart [1982] 1 NZLR 708 (CA) at 715; and Atapattu-Weerasinghe v Accident Compensation Corporation [2017] NZHC 142 at [2] cited in Harvey v Accident Compensation Corporation [2023] NZHC 489.
8 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 (SC) at [25].
9 Commissioner of Inland Revenue v Walker [1963] NZLR 339 at 353–354.
10 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].
[25] The nub of the respondent’s argument is that the Court made a factual finding that the Corporation erred in its original decision when it failed to adequately analyse the early radiological evidence, namely the 2005 MRI. This confirmed, as a matter of fact, that no disc prolapse was suffered in the accident, entitling the Corporation to revoke its decision under s 65 of the Act.
Analysis
[26] Bartels was a case in which fresh medical opinions obtained ten years later were relied on to revoke cover.11 The Court held that the Corporation could not lawfully revoke cover where it preferred later medical opinion if the later opinion is based on the same facts and same medical knowledge as that originally relied on. The Corporation could not properly categorise the original decision as “made in error”.
[27]Counsel for Mr Porter relies on the following passage of the Bartels judgment:
[34] “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 their decision was clearly wrong.
[28] In my view, a further passage in Bartels is significant in the context of the present case. The Court had also said:
[28] We are satisfied that the Judge’s view as to the meaning of “made in error” in the context of s 390 of the Act was wrong. We see no justification at all for restricting the meaning of that phrase to “a mistake made in the process of collecting and evaluating the material then available.”
[29] The District Court Judge found that “the Corporation’s decision was taken without knowledge of the April 2005 MRI scan”. Mr Porter’s counsel argues that this runs in the face of the reference to “bulging” at the time of the accident in the Corporation’s internal claim summary report last updated on 23 September 2019.12
11 Bartels, above n 3. Bartels relates to s 390 of the Act. That provision entitled the Corporation to revise decisions under former Acts. The parties were at idem that s 65 of the Act is equivalent and the observations in Bartels are equally applicable.
12 See [10] above.
[30] He submits the MRI scan report contains the only reference to a disc bulge, so inferentially the Corporation must have had knowledge of the scan and the report contents. The Corporation acknowledges that the conclusion or findings of the report were available to it but denies the whole report was. The submission of the Corporation’s counsel is that the MRI scan report was overlooked at the time of the determination and that comprises the error on which the Corporation relies.
[31] This is consistent with the undisputed fact that Mr Barnes’ critical medical opinion in 2019 was formed without having the 2005 MRI scan report. The Corporation clearly relied on Mr Barnes’ opinion in making its decision. Otherwise, it would not have gone back to him in its review process. His opinion was premised on his misunderstanding that there was no scan in 2005.
[32] The difference between the opinions Mr Barnes gave in 2019 before reviewing the scan and in 2020 after review of the scan is instructive. In the Assessment Report and Treatment Plan sent to the Corporation dated 6 September 2019, under the “Causal Medical Link between Proposed Treatment & Covered Injury” section, Mr Barnes wrote:
This man fell from a horse in 2005. That was when all the problems with his lumbar problems began. Initially he had severe pain down the right leg. He almost certainly had a disc protrusion but no scan was undertaken. Since that time he has had intermittent leg pain and intermittent lower back pain…
[Emphasis added]
[33]After review of the 2005 MRI report, Mr Barnes wrote the Corporation stating:
It is still possible, as I speculated, that there was a disc protrusion which was not present on the day of the injury but may have developed over the subsequent weeks because of injury to a disc which progressed to a protrusion.
[34] This reflects a different assessment which can only be attributed to the 2005 scan report.
[35] This is not an instance where the Corporation’s revocation depended on a mere difference of opinion between specialists. There is cogent evidence that the original decision did not properly evaluate the 2005 MRI evidence.
[36] I accept the respondent’s argument that the mention of a disc bulge in the 2005 MRI report does not amount to evidence of a traumatic disc injury. Mr Barnes does not mention the disc bulge. As counsel for the Corporation suggests, Mr Barnes would have seized on that reference if it was material to causation. Counsel for Mr Porter does not refer to any evidence suggesting weight is to be accorded to the contemporaneous report of a disc bulge. There is nothing on which to hinge the submission that the Judge overlooked something material. The submission by Mr Porter’s counsel that the Court wrongly stated that there was no disc bulge is not correct. The Judge quoted from the comment section of the MRI report rather than from the body of the report and therefore did not refer to a disc bulge.13 But that does not imply the Judge erroneously found there was no disc bulge or that it was material to his decision. The Court’s conclusion that the MRI scan showed no evidence of any significant injury (and no disc prolapse) was clearly open to it on the facts and in the context of the medical opinion before the Court.
[37] In my assessment, there is no bona fide and serious argument that the District Court Judge misapplied Bartels. On the contrary, the Judge clearly and correctly identified the basis on which the Corporation is permitted to revoke cover and then identified multiple factual grounds to establish the requisite threshold. Nor do I identify any other error of law meeting the test for special leave to appeal.
[38]I must therefore decline the application.
[39]The Corporation has not sought costs.
............................................................
Walker J
13 At [38].
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