Ross v Accident Compensation Corporation
[2022] NZHC 448
•14 March 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-562
[2022] NZHC 448
IN THE MATTER of an intended appeal under s 162 of the Accident Compensation Act 2001 BETWEEN
EUPHEMIA ROSS
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 25 February 2022 Counsel:
A C Beck for Applicant
F L Becroft for Respondent
Judgment:
14 March 2022
JUDGMENT OF ELLIS J
[1] In 1997 Ms Ross suffered an injury at work. The Accident Compensation Corporation (ACC) accepted she had cover for this injury. She has not returned to employment since.
[2] On 18 July 2014, ACC determined that Ms Ross was “vocationally independent” and identified six work types for which she was suitable. An application for a review of that decision was declined on 3 February 2015.
ROSS v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 448 [14 March 2022]
[3] On 5 January 2021, Judge Spiller dismissed an appeal by Ms Ross from that decision. 1 On 22 September 2021 Judge A Sinclair declined leave to appeal that decision to the High Court.2
[4] Ms Ross now applies to this Court for special leave to appeal Judge Spiller’s decision.
Legal framework
Vocational rehabilitation
[5] Section 75 of the Accident Compensation Act 2001 (the Act) provides that, within 13 weeks of ACC’s acceptance of a claim for cover, the Corporation is required to determine whether a claimant is likely to need vocational rehabilitation after that 13 week period has ended. If so, ACC is required to prepare an individual rehabilitation plan, in consultation with the claimant.
[6] The purpose of vocational rehabilitation, as set out in s 80, is to help a claimant to, as appropriate:
(a)maintain employment; or
(b)obtain employment; or
(c)regain or acquire “vocational independence”.
[7]Vocational independence is defined to mean:3
… the claimant’s capacity as determined under s 107 to engage in work—
(a)for which he or she is suited by reason of experience, education, or training, or any combination of those things; and
(b)for 30 hours or more a week.
1 Ross v Accident Compensation Corporation [2021] NZACC 4.
2 Ross v Accident Compensation Corporation [2021] NZACC 145.
3 Accident Compensation Act 2001, s 6(1).
[8] Section 85 of the Act relevantly provides that ACC is liable to provide vocational rehabilitation to a claimant who—
(a)has suffered personal injury for which he or she has cover; and
(b)is entitled to weekly compensation.
[9] A claimant’s vocational rehabilitation needs must be assessed in accordance with s 89, which requires:
(a)an initial occupational assessment to identify the types of work that may be appropriate for the claimant; and
(b)an initial medical assessment to determine whether the types of work identified under paragraph (a) are, or are likely to be, medically sustainable for the claimant.
[10] Under ss 92 and 96, the occupational assessor and the medical assessor must each prepare and provide to ACC a report on the initial occupational assessment. The reports must provide the information required by s 89.
Vocational independence
[11] The process to be followed in assessing whether a claimant has achieved vocational independence is set out in s 108:
(1)An assessment of a claimant’s vocational independence must consist of—
(a)an occupational assessment under clause 25 of Schedule 1; and
(b)a medical assessment under clause 28 of Schedule 1.
(2)The purpose of an occupational assessment is to—
(a)consider the progress and outcomes of vocational rehabilitation carried out under the claimant’s individual rehabilitation plan; and
(b)consider whether the types of work (whether available or not) identified in the claimant’s individual rehabilitation plan are still suitable for the claimant because they match the skills that the claimant has gained through education, training, or experience.
(3)The purpose of a medical assessment is to provide an opinion for ACC as to whether, having regard to the claimant’s personal injury, the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant’s individual rehabilitation plan.
[12] Under s 109(1), ACC may determine a claimant’s vocational independence at such reasonable intervals as it considers appropriate.
[13] Also relevant for present purposes is s 110 of the Act, subsection (3) of which provides that ACC must not require the claimant to participate in an assessment—
(a)unless the claimant is likely to achieve vocational independence; and
(b)until the claimant has completed any vocational rehabilitation that ACC was liable to provide under his or her individual rehabilitation plan.
[14] If ACC determines that a claimant has vocational independence, the claimant loses her entitlement to weekly compensation three months after the date the determination is notified.4
Reviews and first appeals
[15]The disputes process (reviews and appeals) are dealt with in Pt 5 of the Act.
[16] Claimants who are unhappy with ACC’s decision on their claim may, under s 134 of the Act, apply for a review within three months of the relevant date, as specified in s 135. Claimants who are unhappy with a review decision may appeal to the District Court under s 149. The relevant notice of appeal must be received by the specified registry within 28 days of the date on which the reviewer distributes a copy of the review decision to an appellant, or within such longer time allowed by the Court.5
4 Section 112.
5 Section 151.
[17] The District Court may hear any evidence that it thinks fit, regardless of its admissibility. The District Court is then required to come to its own decision on that evidence:6
The District Court Judge’s function on re-hearing, when dealing with the medical assessment, is to take all of the medical evidence, including that from the medical assessor and any other medical evidence into account in deciding whether or not the appellant is vocationally independent … In assessing the medical evidence, the reviewer and the District Court’s job will be to apply a traditional approach to an analysis of the competing expert evidence. For example, how do the medical practitioner’s particular qualifications and experience relate to the claimant’s disability? What is the quality of the medical report, including the thoroughness of the detail[?]
Leave to bring second appeal on a question of law
[18] A claimant who is dissatisfied with the District Court’s decision on appeal may seek leave to bring a further appeal on a question of law.7 If leave is declined, special leave (to appeal on a question of law) may be sought in the High Court.8
[19]The principles applicable to the grant of special leave are well established. In
Kenyon v ACC the High Court confirmed:9
(a)The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly:
(b)Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success:
(c)The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course:
(d)It is for the Applicant to show that leave is required in the interests of justice:
(e)As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account.
[20] Similarly, as Williams J observed in Atapattu-Weeasinghe v Accident Compensation Corporation:10
6 Martin v ACC [2009] 3 NZLR 701 at [33].
7 Section 162(1).
8 Section 162(3).
9 Kenyon v ACC [2001] NZHC 1301 at [15], citations omitted
10 Atapattu-Weerasinghe v Accident Compensation Corp [2017] NZHC 142, cited in Hastings v Accident Compensation Corp [2019] NZHC 761.
[2] … Leave to bring a second appeal in this fashion is not lightly granted partly because leave has already been declined once in the District Court, and partly because the role of this Court on a second appeal is not broadly corrective. Rather, it is focused on issues of principle and matters of importance beyond the interests of the parties in dispute.
[21] What constitutes a question of law is equally well established. A decision- making body commits an error of law if it:11
(a)misinterprets, and so misdirects itself on, the law;
(b)overlooks any relevant matter to the proper application of the law;
(c)takes account of any matter which is irrelevant to the proper application of the law; or
(d)reaches an ultimate conclusion which is insupportable on the facts because proper application of the law requires a different answer …12
This case
[22] Due to the date of Ms Ross’ original injury, the background to this matter is lengthy. I attempt to confine my summary below to the truly relevant points.
[23] Up until 2 July 1997 Ms Ross worked as a clerk, data entry operator and office manager. On that day she suffered a right wrist injury while lifting heavy computer files. The initial diagnosis was a sprain to the wrist for which she had cover and was granted entitlements by ACC.
[24] In 2001, the District Court overturned a decision by ACC to suspend Ms Ross’ entitlements on the basis that her ongoing symptoms were no longer causally related to her covered injury.
[25] In 2003, following an Initial Occupational Assessment (IOA) and an Initial Medical Assessment (IMA) seven job types were identified as vocationally suitable
11 Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51] & [52]; Bryson v Three Foot Six Ltd [2005] 3 NZLR 72l(SC) at [24]–[27].
12 Vodafone New Zealand Ltd v Telecom New Zealand Ltd at [52].
for Ms Ross. These job types then formed the focus of her vocational rehabilitation plan.
[26] In early 2004 Ms Ross injured her ankle which, for a time, disrupted her rehabilitation and training and is also thought to have given rise to some ongoing issues from a vocational independence perspective.
[27] In January 2006, a Vocational Independence Occupational Assessment (VIOA) identified 11 vocationally suitable job options for Ms Ross. But the vocational independence process was put on hold following the subsequent (February 2006) Vocational Independence Medical Assessment (VIMA), which opined that:
(a)a successful return to work would require her to avoid highly repetitive clerical work; and
(b)Ms Ross was depressed and that there were treatment and rehabilitation issues around a potential mental injury diagnosis.
[28] Following a referral to a psychiatric specialist, Dr Davis, Ms Ross was diagnosed with a chronic pain disorder arising from her wrist injury and a depressive disorder arising from her resulting losses. ACC granted cover for depression and Ms Ross was referred for further activity-based programmes and pain management counselling, which continued throughout 2006 and 2007.
[29] In November 2007, a second VIOA identified ten suitable job options and no vocational barriers. But the subsequent VIMA, conducted by a rheumatologist, Dr Rajapakse noted:
Diagnostic Impression
She clearly has a Chronic Pain Syndrome affecting not only the right arm but also possibly the right ankle at the back. These pain syndromes have probably been predisposed to by previous stresses including the diagnosis of breast cancer in the past coupled by the stressful [sic] that she appears to have been undertaking before the onset of the right arm pain. The consequence of the prolonged pain has possibly had adverse effects on her mood subsequently which is compounding the persistence of her symptoms.,
Impressions and Prognosis
Unfortunately I don't think her outlook is very good at all. Patients who have had such longstanding pain syndromes in my experience rarely make any
meaningful recovery. It would appear that she has been given reasonable trials of the different modalities of management and are helpful including a psychological assessment, physical therapy, psychiatric assessment and treatment, all of which have not been to much avail.
[30]Dr Rajapakse then concluded that:
… based on the current limitations of ongoing depression, chronic pain syndrome, restriction of upper limb activity to writing a post card and very limited housework, restriction of sitting to 20–30 minutes, driving tolerance to 30 minutes.
[31]Dr Rajapakse excluded all the job options identified in the VIOA.
[32] As a result of Dr Rajapakse’s assessment, ACC determined that Ms Ross was not yet vocationally independent.
[33] Over the following five years, Ms Ross completed further pain management/psychological sessions, osteopathic treatment and work preparation programmes. In late 2010, Ms Ross’ psychologist, Roz Walker, reported some improvements, but noted continued sleep disruption and moderate depression and anxiety. And in late 2011 under the heading “outcome not achieved” Ms Walker wrote:
Although Euphemia's presentation was brighter by the end of sessions, her scores on the Hospital Anxiety and Depression scale had not changed and indicate an ongoing moderate level of depression and anxiety. Euphemia reports that her mood does tends to fluctuate. She reports that she understands the cognitive restructuring process and does try to replace unhelpful cognitions but that this is not always successful. She still finds it hard not to look back with an extremely positive interpretation of how her life used to be and compare her current situation in a very negative light.
[34]Then she commented:
Euphemia has received information about a range of cognitive behavioural strategies that can be helpful in managing a persistent pain condition as well as depression and anxiety.
…
Although there has not been any major change in Euphemia’s presentation, she has made a shift in her level of acceptance and managing her activities despite pain. Additional psychological sessions would be unlikely to lead to any more significant change at this time.
[35] In January 2014, following advice from an occupational consultant (Mr Heasley) that Ms Ross had completed her rehabilitation and should begin searching for employment, ACC advised her that vocational independence would again be assessed.
[36] A VIOA completed the next month reported that Ms Ross had the occupational capacity for 15 work types, including six for which she was assessed as vocationally independent. In March 2014 Dr Michael Antoniadis (a specialist occupational physician) then met with Ms Ross and completed a further VIMA. In the course of giving his opinion, Dr Antoniadis noted that:
[Ms Ross] has developed a secondary mental illness diagnosed as a major depressive disorder as well as a pain disorder after psychiatric evaluation with Dr Mark Davis in 2006.
Ms Ross has had extensive psychological input and guidance … Her dose of antidepressant is stable. …
[37] After describing Ms Ross’ condition as continuing to be “Non-specific chronic right upper extremity pain” Dr Antoniadis said:
This is largely associated with sustained postures either sitting or standing, or sustained and repeated forceful use of the hand and using the hand under load, particularly away from the body.
Activities that require repetitive use without opportunities for frequent breaks also result in increasing symptoms in the right upper extremity even if they are light or sedentary in nature such as computer-based activity. There is clear benefit from her training in Dragon Dictate to limit the frequency of sustained computer-based activity particularly at this time at her home.
In my opinion Ms Ross does not require any further medical investigation or intervention. She is not likely to benefit from further psychological input as has been identified by Roz Walker at her last review in October 2011. I am not of the opinion that she requires any further physical rehabilitation.
She should be encouraged with regards maintaining regular aerobic activity and continuing to utilise the numerous means in which she is able to effectively manage her pain in her day-to-day functioning whether, it be with her limited ability for the household chores or through her activities of daily living and her personal cares.
[38] Dr Antoniadis opined that Ms Ross was fit to work 30 hours per week in sedentary or light employment that allowed flexibility of posture, without further
medical investigation or intervention or psychological input. He found that three of the 15 work types identified in the VIOA were medically suitable.
[39] Following the completion of this VIMA it seems that Mr Heasley (an occupational consultant) prepared a report advising that Dragon Dictate software (in the use of which Ms Ross had received training) could be used for three of the other 15 roles identified in the January VIOA. This caused Dr Antoniadis to update his earlier VIMA in July, after meeting with Ms Ross again. Although the July VIMA largely replicates the March VIMA, this time Dr Antoniadis concluded that six of the 15 work types identified in the VIOA were medically suitable. Other potentially notable additions or changes to the later VIMA include:
(a)the statements that Ms Ross “does not have a subjective illness to support a complex regional pain syndrome”.
(b)the statement that Ms Ross “does not require any further psychological input nor any physical rehabilitation” without Dr Antoniadis’ previous qualification that “She is not likely to benefit from further psychological input as has been identified by Roz Walker at her last review in October 2011”.
(c)The statement that “when it comes to future employment [Ms Ross] is entirely suited to full time employment” provided this was in a sedentary or essentially light role.
[40] As a result of Dr Antoniadis’ updated VIMA, ACC determined that Ms Ross was vocationally independent and advised her that her compensation would cease from October 2014.
[41] The following month Ms Ross applied for a review of that determination on the grounds that the medical assessment relied on by ACC did not meet the standard required by the Act and that ACC had failed to comply with the requirements of s 110(3)(a) (a point I address later in this judgment).
[42] In January 2015, the review hearing was held but Ms Ross and her representative did not appear and did not file any submissions. Unsurprisingly, the reviewer upheld ACC’s determination.
[43] In March 2015, Ms Ross independently consulted Dr Rajapakse. In his report he answered four specific questions that had been posed by Ms Ross’ advocate, one of which is potentially relevant to the proposed appeal. That question was:
Given the absence of any further DSMIV GAF scores being provided by way of the required psychiatric assessment process since 8 October 2009 by Dr Davis, is it safe to assume as opined by Dr Antoniadis that the last report by Roz Walker and attendance at other pain related treatment options up to 2011 was sufficient to determine that there is no longer any mental injury barrier to Ms Ross being declared fit for a return to full time employment? Please provide your reasoning to support your opinion.
[44]Dr Rajapakse responded:
As stated before, Dr Davis's assessment of 8 October 2009 would deem her as being psychologically unlikely to be able to carry out a full time job. This was recalled in Roz Walker's final report dated 3 October 2011, which is also quoted above. These reports/assessments would argue against there being sufficient evidence to conclude that the psychological issues relating to chronic pain syndrome have substantially changed to change her from being incapable of work to being capable of work.
[45]Earlier in the report, Dr Rajapakse had noted:
The files provided by you note a psychiatric report from Dr Davis dated 2009, in which he diagnosed her with a GAF scale of 41-50, which made her unsuitable to work, which also complemented my assessment in that at that level of impairment it is considered unlikely that the patient would be able to work.
Since then she has received a number of psychological interventions from Roz Walker. In her reports dated 2011, she states “She has not been able to get on top of daily chores including laundry and dishes”; “She reports longstanding sleep disruption”; “She still wakes at night”; “Her depression scale has not changed, indicating ongoing moderate levels of depression and anxiety”; “Additional psychological sessions would be unlikely to lead to any more significant changes”.
This would compliment [sic] my impression today that Euphemia has not substantially changed from when I saw in 2007.
[46] And Dr Rajapakse specifically disagreed with Dr Antoniadis’ assessment of Ms Ross’ ability to undertake any of the six job types deemed by him to be suitable, for both physical (pain) and psychiatric/psychological reasons. He concluded:
This lady expressed her desire to go back to work and for me to provide an instant solution to her pain to enable this. Unfortunately, that is not easily available and exploring avenues of treatment was beyond the scope of what was being requested of today’s consultation.
The reality is that unless the ongoing pain issues and the patient’s psychiatric issues are addressed she will remain unfit for VIMA clearance for a 30 hour work role in any of the occupations identified above.
[47] Dr Rajapakse’s opinion was provided to ACC but ACC declined to revisit its earlier review decision.
The appeal in the District Court
[48] For reasons that the District Court Judge found persuasive (but which are not detailed in his decision) Ms Ross did not appeal the January 2015 review decision until June 2020.13
[49] After traversing the lengthy history of Ms Ross’ case the Judge began by observing:
[63] The main issue to be decided is whether ACC’s decision that Ms Ross is vocationally independent (with the result that the weekly compensation for her personal injury ceased) was flawed either in process or substance.
[50]As regards Ms Ross’ psychological state, he noted:
[67] Ms Ross’ psychological/psychiatric profile was repeatedly updated between 2003 and 2014. During this period, Ms Ross was carefully monitored by ACC, in light of the rehabilitation that she received. She was referred for repeated psychiatric and psychological assessments, to an occupational specialist, the Pain Clinic, a physiotherapist, a pain consultant and an occupational consultant.
[51] Then, after giving a brief overview of the Act’s vocational independence provisions, the Judge noted Ms Ross’ submission that:
13 The reference at [52] of the District Court decision to the appeal being filed in June 2018 appears to be in error. As I understand it, the Corporation did not oppose the grant of an extension of time for bringing the appeal, and it was.
(a)her ongoing and debilitating pain had not improved and prevents her from working;
(b)Dr Antoniadas’ 2014 report failed to take account of chronic regional pain syndrome and depression; and
(c)Dr Rajapakse had questioned whether there was any real change in her condition and was of the view that she was not fit to undertake full time work.
[52] In terms of the competing views of Dr Antoniadis and Dr Rajapakse, the Judge said:
[71] As to Dr Antoniadis’ final report on 1 July 2014, this followed a 95- minute assessment meeting with Ms Ross on 25 February 2014, a report on 17 March 2014, and a 70-minute further assessment meeting with her 17 June 2014. The report covered the history of Ms Ross’ injury, her medical, social and occupational history, her physical examination and investigations, and Dr Antoniadis’ opinion. The report explicitly addressed Ms Ross’ pain and diagnosis of major depressive disorder. Dr Antoniadis noted that Ms Ross had some clear psychological means to manage her pain and that these were well ensconced; and that was on antidepressant medication and did not require any further psychological input. In light of her condition, Dr Antoniadis specifically excluded employment that would: constrain her posture, require repetitive forceful use of her right hand, require frequent or constant computer-based activity, or involve cognitively difficult tasks or those that required high levels of concentration. The tasks that Dr Antoniadis recommended were those that were suitable, when considering her covered injury and residual and persisting arm pain.
[72] Finally, in relation to Dr Rajapkase’s report of 30 March 2015, this followed an earlier meeting with Ms Ross in December 2007, and a 45-minute consultation with her on 30 March 2015. The report covered the history of Ms Ross’ complaint, her current limitations, her medical, psychosocial and occupational history, the examination findings, and Dr Rajapkase’s diagnostic impressions and responses to questions raised. Dr Rajapkase assessed that Ms Ross had not changed substantially since she was last seen in 2007, that there was insufficient evidence to conclude that the psychological issues relating to chronic pain syndrome had substantially changed from her being incapable of work to being capable, and that her chronic pain and associated depressive state made her unsuitable to do any of the jobs listed for 30 hours per week.
[73] Dr Rajapakse’s uniformly bleak report stands in contrast to the more fully considered, nuanced and balanced report of Dr Antoniadis. In relation to Ms Ross’ pain, it is acknowledged that her rehabilitation has not cured her fully or made her pain go away. However, from 2006, she received appropriate pain management counselling and education, medication, and
assistance from the Pain Clinic, a physiotherapist and an osteopath. She and health professionals noticed some improvement in her condition. The fact that she has pain does not necessarily mean that she is incapable of appropriate work, in particular, work that avoids aggravating postures. The job options identified are entry level, are not cognitively demanding, and allow for postural variation, and there is added assistance of voice-activated software in clerical roles.
[53]The Judge concluded:
[74] As has been previously observed, the rehabilitation of an injured person to a point where he or she is able to take gainful employment once again is rightly regarded as important for the individual herself and her place in society.
[75] I accept that Ms Ross’ transition to a new and different employment role will not be a smooth one, and there will inevitably be significant challenges ahead for her. However, I find no flaw in the process and substance of ACC’s decision that Ms Ross is vocationally independent.
[76] I find that ACC’s decision that Ms Ross is vocationally independent (with the result that the weekly compensation for her personal injury ceased) was not flawed either in process or substance. The decision of the Reviewer of 3 February 2015 is upheld. This appeal is dismissed.
The application for leave to appeal
[54] Ms Ross sought leave to appeal Judge Spiller’s decision on grounds similar to those advanced in this Court.14 Judge Sinclair declined the application on the basis that she had failed to raise any arguable error of law.
The application for special leave
[55] Ms Ross contends that the District Court decision is wrong in law in four specific respects. The notice of appeal expresses these as follows:
(a)The District Court erred in law by failing to address the requirements of s 110 of the Act and whether they had been satisfied. The Court failed to undertake the appropriate analysis under s 110(3) as required by McGrath v ACC [2011] 3 NZLR 77 (SC).
(b)The District Court erred in law by applying an incorrect approach on appeal. The issue was not whether there was a flaw in ACC’s decision, but whether the applicant could, on the Court’s own assessment of the evidence, be regarded as vocationally independent.
14 Ross v ACC [2021] NZACC 145.
(c)The District Court erred in law by rejecting Dr Rajapakse’s report without giving any reasons and without apparent justification.
(d)The District Court erred in law by making findings that were in conflict with the evidence as a whole.
[56] It is said that these errors of law made the District Court’s decision unsafe, and have resulted in substantial injustice to Ms Ross.
Discussion
[57] I consider whether any of the proposed grounds meet the threshold for the grant of special leave, in turn.
First proposed ground
[58] As Mr Beck rightly pointed out, the District Court Judge did not refer to s 110(3) at all. But rather than being indicative of some error of law on his part, it is indicative of the opposite. That is because in Splite v ACC the Court of Appeal made it clear beyond doubt that question that whether the requirements of s110(3) of the Act have been met is not a decision giving rise to appeal and review rights under Pt 5 of the Act.15 For what it is worth, that decision is, in my respectful view, plainly correct.
[59] Although, for some reason, neither party referred me to Splite, it seems to me to be, quite simply, the end of the matter. It inexorably follows that leave (or special leave) to appeal cannot be granted on a question relating to s 110.
Second proposed ground of appeal
[60] There is no dispute that a first appeal under s 149 of the Act involves a rehearing on the merits. The appeal is not required to proceed simply on the basis of the record; it is open to the District Court to receive further evidence, to which the usual rules of admissibility do not apply.16 In Martin v ACC (also a vocational
15 Splite v ACC [2016] NZCA 302.
16 As I understand it, however, in this case there was no fresh material (apart from Dr Rajapakse’s 2015 report which, nonetheless, had presumably been considered by the Corporation when refusing to revisit its 2014 decision) before the District Court.
independence case) Ronald Young J summarised his view of the proper appellate approach as follows:17
(a)when assessing vocational independence by the Corporation the
Ramsay principles apply;18
(b)the review and any appeal to the District Court are to be determined according to the statutory review and appeal rights, Wildbore and Austin Nichols. The Ramsay principles have no application to such reviews or appeals to the District Court;19
(c)the approach in (b) therefore requires the reviewer or District Court to consider all the relevant evidence and to decide if they are satisfied the claimant is vocationally independent. The medical assessor’s opinion is to be given no pre-eminence solely because of its statutory basis;
(d)if the reviewer or District Court reach a different conclusion on the evidence as to vocational independence than ACC (or reviewer) then the decision is wrong, the obligation on the appellant met and a different decision should be substituted;
(e)in assessing expert medical evidence factors such as (non-exhaustive) the extent and relevance of the practitioners qualifications and experience, the comprehensiveness of the evidence gathered, the quality of the report, where the preponderance of opinion lies and the validity of criticism of other medical opinions, will all be relevant in deciding the ultimate question.
[61] Mr Beck submitted that the District Court Judge was therefore wrong to frame the question on appeal as being “whether ACC’s decision that Ms Ross is vocationally independent … was flawed either in process or substance”. He said those words reflected an abnegation of the Court’s obligation to hear the matter afresh.
[62] I do not consider that to be a fair reading. As will be evident from the summary of his conclusions just set out above, Ronald Young J in Martin referred to and applied the Supreme Court’s decision in Austin Nichols.20 Although parts of that decision are quoted in the course of his judgment, it is useful to set out the key passages here, in full. The Court said:21
17 Martin v ACC [2009] 3 NZLR 701 (HC) at [36].
18 This is a reference to the decision in Ramsay v ACC [2004] NZAR 1 (HC).
19 The references here are to Wildbore v ACC [2009] 3 NZLR 21 (CA) and Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC)
20 Martin, above n 17, at [36].
21 Austin, Nichols & Co Inc, above n 19, at [4] and [5]; citations omitted, emphases added.
[4] Perhaps the most familiar general appeals are those between courts. So, in the present case, the Court of Appeal on general appeal from the High Court under s 66 of the Judicature Act 1908 was entitled to take a different view from the High Court. Similar rights of general appeal are provided by statute in respect of the decisions of a number of tribunals. The appeal is usually conducted on the basis of the record of the court or tribunal appealed from unless, exceptionally, the terms in which the statute providing the right of appeal is expressed indicate that a de novo hearing of the evidence is envisaged. … In either case, the appellant bears an onus of satisfying the appeal court that it should differ from the decision under appeal. It is only if the appellate court considers that the appealed decision is wrong that it is justified in interfering with it.
[5] The appeal court may or may not find the reasoning of the tribunal persuasive in its own terms. The tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand. But the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.
[63] These dicta have been subsequently elucidated many times. By way of example only, in Green v Green the Court of Appeal said:22
[29] Austin, Nichols reaffirmed the appellate court’s obligation to form its own independent judgment on the merits of an appeal by way of rehearing. But two fundamentals remain constant.
[30] First, it is still axiomatic that the appellant bears the onus of persuading the appellate court to reach a different conclusion. Of necessity, in discharging that onus the appellant must identify the respects in which the judgment under appeal is said to be in error.
…
[64]Similarly:23
By rehearing, we do not mean that the appellate court starts with a clean slate. Rather, bearing in mind the observations of this Court in Green v Green, the appellant must identify and demonstrate error and the appellate court must come to its own conclusion based on the material that was before the original decision-maker, and any further evidence that has been admitted on appeal.
22 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].
23 R v Taipeti [2018] NZCA 56, [2018] 3 NZLR 308 at [42].
[65] In this case, then, the burden was on Ms Ross to identify and demonstrate an error in ACC’s decision. It seems clear that the way in which she sought to do so was by relying on the report of Dr Rajapakse. So the question is whether the District Court Judge may have been wrong (in law) to prefer the assessment of Dr Antoniadis. That is the issue more directly raised by the third proposed question on appeal. There is, in my view, nothing in the second.
Third proposed question on appeal
[66] Under this ground, Ms Ross proposes to contend that the District Court erred in law by rejecting Dr Rajapakse’s report “without giving reasons and without apparent justification”.
[67] Ordinarily, a preference expressed by a lower court for one expert view over another would be unlikely to give rise to a question of law. Nor do I accept that the District Court Judge in this case failed to give reasons for his preference, although I acknowledge these were relatively brief.
[68] After hearing from Mr Beck and spending quite some time with the fairly voluminous file, it seems to me that his best potential appeal point is that in assessing Ms Ross’ readiness to return to full-time employment there has been no consideration of whether her psychological state has improved sufficiently to permit this to occur. To reiterate briefly:
(a) in 2007:
(i)Dr Rajapakse concluded that the potential job options identified as suitable for Ms Ross were all excluded for a number of medical reasons, including her ongoing depression;
(ii)ACC accepted, and acted on, that advice;
(b)in 2011 Ms Walker noted that Ms Ross’ scores on the anxiety and depression scale had not improved, and a sustained improvement of mood had not been achieved;
(c)in February 2014, Dr Antoniadis:
(i)noted that Ms Ross had developed a secondary mental illness diagnosis;
(ii)recorded that, based on Ms Walker’s 2011 report, Ms Ross “is not likely to benefit from further psychological input”; but
(iii)did not address whether her psychological state had actually improved since then;
(d)in July 2014 Dr Antoniadis omitted the reference to Ms Ross being unlikely to benefit from further psychological input (simply stating instead that she “does not require any further psychological input”) and—despite adding that she is “entirely suited to return to full-time employment” subject to addressing the limitations of her physical condition—did not address whether her psychological state had improved since 2011, or what impact that might have on her ability to undertaken the identified roles ;
(e)in 2015 Dr Rajapakse opined that:
… unless the ongoing pain issues and the patient’s psychiatric issues are addressed she will remain unfit for VIMA clearance for a 30 hour work role in any of the occupations identified … ;
(f)the District Court expressly relied on Dr Antoniadis’ assessment that Ms Ross “did not require any further psychological input” but does not address the more fundamental point made by Dr Rajapakse.
[69] I therefore accept that there is an arguable point of law identified by Ms Ross here, of the Edwards v Bairstow type,24 namely whether there was any evidence before
24 In Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL) at 36, Lord Radcliffe suggested three lenses through which a challenge to a lower Court’s factual findings could be seen as giving rise to a question of law: a case where there is no evidence to support the determination, a case where the evidence is inconsistent with and contradictory of the determination and a case where the true and only reasonable conclusion contradicts the determination. Lord Radcliffe preferred the last of these formulations.
ACC (or the District Court) capable of supporting the determination that Ms Ross’ psychological/psychiatric issues (which in 2007 had been identified, and accepted by ACC, as being an impediment to Ms Ross’ return to full-time work) had been resolved.
[70] This was not an issue identified by the District Court in its leave decision, and as noted earlier it was really only on hearing Mr Beck’s oral arguments before me that it developed.25 As a result, it may be (to channel Fisher J in Kenyon) an “extraordinary factor which has not been properly taken into account”.26 When that is taken together with the “considerable amount” hinging on the case for Ms Ross, who relies to a significant degree on ACC support, it is my view that it is in the interests of justice that special leave to appeal—but on this issue alone—should be granted.27
Fourth proposed question on appeal
[71] I agree with Ms Becroft that this proposed ground appears to be “catch-all” in nature and—to the extent it is capable of qualifying as a question of law at all—adds nothing to the other three. I do not propose to consider it further.
Conclusion
[72] The application for special leave to appeal is granted, in part. The approved questions are:
Was there evidence available to ACC in 2014 or the District Court in 2021 that Ms Ross’ depressive disorder had materially improved since 2007?
If not, did the District Court err in law (in the Edwards v Bairstow sense) when it upheld ACC’s 2014 decision that Ms Ross had vocational independence?
[73] I acknowledge that the first of these questions is not a question of law. Rather, I pose it as a prequel to the second in case, despite my best endeavours, I have missed something in the considerable amount of paper that was before me.
[74]I should also record that:
25 The leave decision was determined on the papers.
26 Kenyon, above n 9, at [15].
27 At [15].
(a)the sole focus of the appeal is intended to be on whether there was any evidence upon which ACC and the District Court could have formed the view that Ms Ross’ mental state was such that she was able to undertake full-time work (of any of the identified kinds); and
(b)both questions are predicated on my assumption that persisting mental injury alone—provided it is caused by physical injury for which cover was granted—can suffice to find that a person is not vocationally independent.28
[75] I end by noting that it may be that ACC is prepared to relook at the matter now, simply on the basis I have articulated, without the need for a hearing of the substantive appeal. Otherwise, the appeal should be set down for a CMC in the usual way.
Rebecca Ellis J
Solicitors:
Armstrong Thompson Law, Wellington for Applicant Medico Law, Auckland for Respondent
28 I did not understand Ms Becroft to contend otherwise. I note that s 26(1)(c) of the Act includes in the definition of personal injury any “mental injury suffered by a person because of physical injuries suffered by the person”. Section 27 defines ‘mental injury’ as “a clinically significant behavioural, cognitive or psychological dysfunction”, which presumably covers a depressive disorder. Section 108(3) then establishes that the purpose of a medical assessment regarding vocational independence is to establish “whether, having regard to the claimant’s personal injury, the claimant has the capacity to undertake any type of work identified in the occupational assessment and reflected in the claimant’s individual rehabilitation plan.”
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