Young v Accident Compensation Corporation

[2014] NZHC 2972

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2778 [2014] NZHC 2972

UNDER

The Accident Compensation Act 2011

IN THE MATTER

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

BETWEEN

ROSS YOUNG

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	On the papers
Counsel:	H Peart for Appellant F Becroft for Respondent
Judgment:	26 November 2014

JUDGMENT OF KATZ J

This judgment was delivered by me on 26 November 2014 at 4:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:               Schmidt & Peart Law, Auckland

Medicolaw, Auckland

YOUNG v ACCIDENT COMPENSATION CORPORATION  [2014] NZHC 2972 [26 November 2014]

Introduction

[1]      In February 2005 Ross Young injured his back while assisting to extricate a Toyota van from a ditch.   He was certified unfit for work and paid weekly compensation.

[2]      On 19 January 2012 Total Rehabilitation Services (“TRS”), a third party provider managing the claim for the Accident Compensation Corporation (“Corporation”), issued a determination advising Mr Young that he had achieved vocational independence.1   He was advised that his weekly compensation entitlement would cease in three months time.  Mr Young sought a review of that determination. That review upheld the finding of vocational independence.

[3]      Mr Young then appealed that decision to the District Court.   In Young v Accident Compensation Corporation Judge Joyce QC dismissed his appeal, finding that the Corporation had correctly concluded that Mr Young had achieved vocational independence.2

[4]      Mr Young now appeals that decision to this Court.  Mr Young says that the Judge  overlooked  a  key  medical  report  prepared  by  an  occupational  physician, Dr Dryson, dated 13 July 2012.   The Corporation accepts that Dr Dryson’s report was probably overlooked by the Judge.  It accordingly does not oppose the appeal and agrees that the appropriate relief is for the matter to be remitted back to the District Court for re-hearing.

How the evidence was overlooked

[5]      The District Court hearing took place on 21 May 2013.   Mr Young had obtained two independent reports in support of his case.   The first was from a

1      Vocational independence is a term defined in the Accident Compensation Act 2001 Act applying to claimants whose covered injuries continue to prevent them from returning to their pre·incapacity employment, but who are assessed as being vocationally and physically able to undertake alternative employment for 30 hours a week. The assessment process comprises of an occupational assessment identifying roles that are suitable from a vocational perspective, and a medical assessment, considering whether the vocationally suitable roles are also suitable from a medical perspective. If there is an assessment of vocational independence a claimant loses his or her entitlement to weekly compensation.

2      Young v Accident Compensation Corporation [2013] NZACC 253.

rheumatologist, Dr Wigley, dated 28 April 2012 (prior to the review hearing) and the second was from Dr Dryson dated 13 July 2012 (post the review hearing).

[6]      Mr Young represented himself at review and appeal. On 16 January 2013 he sent a letter by way of written submission to the Court.   He enclosed a bundle of documents which included Dr Dryson’s report.  The report was also referred to in his submission.

[7]      Counsel for the Corporation did not receive the Dryson report, however, until after the respondent’s bundle of relevant documents had been filed with the Court. So, although the report was formally on the record, and was referred to by both parties in the course of the District Court appeal hearing, it was not included in the respondent’s bundle.  I am advised that the District Court usually relies on the bundle prepared by the Corporation as a complete record of the relevant evidence.  It seems that the Judge’s attention was not specifically drawn to the fact that Dr Dryson’s report  had  not  been  included  in  that  bundle  and,  as  a  result,  the  report  was overlooked.

The significance of the Dryson Report to the issues before the District Court

[8]      Dr   Dryson   is   an   experienced   occupational   physician   and   vocational independence medical assessor.   In his report, Dr Dryson sets out the permanent, biomechanical nature of Mr Young’s injury, giving an explanation of the pain and other  symptoms  that  the  injury  causes  and  the  corresponding  restrictions  in Mr Young’s functional ability.  Dr Dryson lists the various job options recommended by the Corporation’s assessor Dr Kanji, and explains why, in his expert opinion, each of these is unsuitable in view of Mr Young’s injury. Dr Dryson also takes issue with some of Dr Kanji’s findings, in particular the fact that Dr Kanji did not take into account the significant deformity of the T12 and L1 vertebrae, secondary to the injury in Mr Young’s spine.

[9]      Mr Young’s view is that this evidence was fundamentally important to his case, given Dr Dryson’s specific expertise in vocational independence matters and his discussion or the key issue on appeal.

[10]     The  District  Court  judgment  included  a  long  discussion  weighing  and comparing the evidence of Dr Wigley against the Corporation’s vocational independence medical assessor, Dr Kanji.   There is no mention of Dr Dryson’s evidence.   The Judge held that the reality of Mr Young’s “day-to-day life” was accurately identified in what he had told Dr Kanji.  The Court’s conclusion was that Mr  Young  was  able  to  perform  the  jobs  recommended  by  Dr  Kanji,  and  that Dr Wigley’s evidence did not adequately rebut that fact.

[11]     It is common ground that Dr Dryson’s report goes to the heart of the issues before the District Court.  It appears probable that, due to its unfortunate omission from the bundle of documents, it may have been overlooked by the Judge.  I accept that in such circumstances the appropriate course is to quash the District Court decision and remit the appeal back to the District Court for rehearing.

[12]     Finally, Mr Young requested that his filing fee in this Court be waived and reimbursed to him.  In my view such a course is appropriate given that Mr Young is not at “fault” in any way, the appeal is proceeding on a “consent” basis and, further, Mr Young is of limited means.  I am satisfied that a waiver of costs is appropriate in such circumstances.

Result

[13]     The appeal is allowed.  I order that:

(a)       the District Court decision be quashed;

(b)      the matter be remitted back to the District Court for a re-hearing of

Mr Young’s appeal; and

(c)       the filing fee of $540.00 in this Court be waived and reimbursed to

Mr Young.

Katz J