Ross v Accident Compensation Corporation - [2023] NZHC 1405

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-562

[2023] NZHC 1405

UNDER the Accident Compensation Act 2001

IN THE MATTER

of an appeal to the High Court pursuant to s 162 of the Act

BETWEEN

EUPHEMIA ROSS

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 17 May 2023

Counsel:

A M Brown for Appellant

S M Bisley and F L Becroft for Respondent

Judgment:

7 June 2023

JUDGMENT OF RADICH J

Introduction

[1] Euphemia Ross (Ms Ross) was granted cover by Accident Compensation Corporation (ACC) for an injury she suffered at work in 1997. Subsequently, in 2006, she was granted cover by ACC for mental injury suffered because of her physical injury.

[2] After obtaining vocational and medical assessments under the Accident Compensation Act 2001 (the Act), ACC decided in October 2014 that Ms Ross was

ROSS v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 1405 [7 June 2023]

vocationally independent and, as a result, she lost her entitlement to weekly compensation under the Act.1

[3] The essential issue on appeal is whether, on the evidence that was available, the District Court erred in law when it upheld ACC’s decision.

[4] For Ms Ross, it is said that there was insufficient evidence – in an Edwards v Bairstow sense2 – for the District Court to uphold ACC’s 2014 decision that Ms Ross’ psychological or psychiatric issues had resolved sufficiently to enable the vocational independence finding to be made.

[5] ACC says that there was an evidential foundation for the conclusion that Ms Ross’ physiological and psychiatric injuries would not prevent her achieving vocational independence and that the District Court’s decision was tenable.

[6] Accordingly, the focus on the appeal is on that evidential foundation. Was it there? Or was it not there to such an extent that (to use the test this Court must apply) the only reasonable conclusion for the District Court would have been to allow the appeal?

Background

[7] The lengthy background to this appeal is set out in some detail in the District Court’s decision at [2]–[52]. What follows is a summary of that factual background.

[8] Ms Ross suffered an injury to her right wrist when lifting heavy boxes at work on 2 July 1997. She was granted cover and was certified to be unfit to work. Subsequently, her diagnosis changed to regional pain syndrome with no underlying injury.

[9] In June 2000, ACC suspended Ms Ross’ entitlements on the basis that her symptoms were no longer causally related to the injury for which she had cover. After

1 Accident Compensation Act 2001, ss 107 and 112.
2 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL) at 36. In other words, that, on the evidence, the only true and reasonable conclusion contradicts the determination.

appeals, the cover was reinstated alongside weekly compensation, hand therapy and home help.

[10] In February and March 2003, Ms Ross, at ACC’s direction, undertook an initial occupational assessment (IOA)3 which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 1405
Decision Date: 7 June 2023

CaseChat Overview and Summary

Euphemia Ross (Ms Ross) challenged the Accident Compensation Corporation’s (ACC) decision to cease her weekly compensation payments on the basis that she had become vocationally independent. Ms Ross was granted cover by ACC for a physical injury she suffered at work in 1997 and later for mental injury because of the physical injury. ACC determined in 2014 that Ms Ross was vocationally independent and so ceased her weekly compensation. The District Court upheld ACC’s decision and Ms Ross appealed to the High Court. The High Court was required to determine whether there was evidence in 2014 that Ms Ross’ mental injuries did not prevent her from undertaking 30 hours of work per week in a job type identified in the vocational independence assessment. The High Court found that there was no evidence of the sort that would enable a conclusion that Ms Ross’ mental injuries did not prevent her from undertaking 30 hours of work per week in job types that had been identified for her. The District Court’s decision was overturned.

Orders