NEVILLE BISHOP V ACCIDENT COMPENSATION CORPORATION HC WN CIV 2009-485-961 [2009] NZHC 1224 (10 September 2009)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                   CIV 2009-485-961

              UNDER                     The Injury Prevention, Rehabilitation and
                                        Compensation
Act 2001

              IN THE MATTER OF          an appeal pursuant to section 162 of the Act

              BETWEEN           
       NEVILLE BISHOP
                                        Applicant

              AND                       ACCIDENT COMPENSATION
                                        CORPORATION
                                        Respondent


Hearing:      2 September
2009

Counsel:      J Miller for Applicant
              A D Barnett for Respondent

Judgment:     10 September 2009


         
           JUDGMENT OF SIMON FRANCE J



[1]    This is an application for special leave to appeal a decision of the District
Court
confirming Mr Bishop's loss of ACC entitlements.


History


[2]    In 1994 Mr Bishop was granted cover in relation to back problems.
In 2002,
as a result of a specialist's review, the cover ceased. The Corporation advised
Mr Bishop that:


       a)     it had reviewed
the matter and decided that cover was incorrectly
              given in 1994. It therefore revoked that decision;



NEVILLE BISHOP
V ACCIDENT COMPENSATION CORPORATION HC WN CIV 2009-485-961 10
September 2009

       b)      it was suspending entitlements from
that point forward.


[3]    The revocation of the original decision does not create any repayment
liability. In effect, therefore,
the two decisions achieved the same outcome which
was to stop cover from that point.


[4]    Mr Bishop sought review. The reviewer
overturned the revocation decision
but upheld the suspension of entitlements decision.


[5]    Mr Bishop appealed. The District
Court reached the same conclusion as the
reviewer.


Context


[6]    In 1994 Mr Bishop was suffering back pain. He was employed
as a drain
layer. No specific event was ever suggested as the cause, so it seemingly was a
situation of gradual process injury.


[7]    In 2002, a review was undertaken. The specialist, Dr Hartshorn reported:

       It is noted that Mr Bishop has degenerative
disc changes on plain x-ray. In
       my opinion this is not a plausible explanation for his current symptoms
       given the fact
that he has pain throughout the entire axial spine and the initial
       presentation back in 1994 was also that of total spinal
pain rather than pain
       localised to the lower back. It is therefore my opinion that no identifiable
       injury event occurred.
It is also my opinion that any possible relationship
       between occupation and the development of degenerative change is
   
   irrelevant as this is not a plausible cause of his current or presenting
       symptom complex. I find no evidence in the medical
documentation or at
       today's assessment that Mr Bishop's ongoing symptoms represent the result
       of a specific injury
or even of a gradual process of an occupational nature.

       Mr Bishop appears to have developed a chronic regional pain syndrome
with
       no specific precipitating injury event.

[8]    It was consequent upon this that the Corporation's agent, Catalyst, made
the
two decisions earlier noted ­ revocation and suspension.


[9]    The reviewer observed:

       In this regard, I agree with
the submission of Ms Henderson about the test
       under the 1992 ACC Act for a gradual process injury being slightly different
       than the later legislation. Section 7(1)(a) of the 1992 Act required there to
       be an employment task which had a particular
property or characteristic
       which caused OR CONTRIBUTED to the personal injury by way of gradual
       process, disease or
infection.

       I do not consider it correct for Catalyst to revoke the original decision of
       ACC dated 24 May 1994. Mr
Bishop would eventually reach a stage where
       his entitlement ceases ­ once any aggravating effects of a work task on his
       pre-existing condition was worn
off. Dr Hartshorne's opinion confirms this
       has now occurred.

[10]   Mr Bishop appealed to the District Court. The Judge stated:

       [35]     The basis of the appellant's case is that work-related aggravated
       spinal degeneration with corresponding
symptoms of restriction of
       movement and pain was the effective cause of continuing untreated pain
       over a significant
period of time. The appellant would say that it is
       impossible to say when the continuing pain could no longer be attributed
to
       the overlaid work-related cause and that the work related injury led
       relentlessly to development of a regional pain
syndrome.

       [36]    I find however that there is not enough evidence for the Court to
       accept on the balance of probabilities
that the progress of the injury from
       painful symptoms to a regional pain syndrome continued to be an effective
       cause.
The key period of time must lie within the time from 1994 and up to
       2001 when Mr Bishop was examined by Mr Hartshorn. During
that time,
       the resolution of the acute condition should have occurred. Either
       Mr Bishop continued to have pain caused
by the work-related condition and
       later becoming entrenched, or his compromised spine, which had been
       affected by lumbar
spondylosis for many years, became the age related and
       substantial cause of the regional pain syndrome.

       [37]    Dr
Hartshorn's report of 7 December 2001 is the pivotal opinion.
       He said that any possible relationship between occupation and
the
       development of degenerative change was irrelevant as it was not a plausible
       cause of the current or presenting
symptom complex. He found no evidence
       in the medical documentation or at his assessment that Mr Bishop's ongoing
       symptoms
represented the result of a specific injury or even of a gradual
       process of an occupational nature.

       ...

       [40]
   I find that Mr Hartshorn's opinion should be accorded more weight
       than later opinions. The opinions of Mr Glennie and Mr
Hadlow were
       ultimately inconclusive and did not provide further support for the
       contention that the effective cause
of the pain syndrome lay within the 1998
       work-related condition.

       [41]     I find there is insufficient evidence to
support an alternative view
       that the aggravated degeneration, that is to say the injury, with corresponding
       symptoms
of restriction of movement and pain, was the effective cause of
       continuing untreated pain over a significant period of time.

Leave to appeal


[11]   A different District Court Judge declined leave to appeal. Now seeking
special leave, Mr Miller raises
three points:


       a)      the District Court identified the wrong issue. It considered the issue
               was whether
the Corporation had rightly suspended payments,
               whereas the issue has always been the revocation of cover decision;


       b)      the District Court treated Dr Hartshorn's opinion as pivotal. However
               that opinion concerns only
the issue of whether there was an initial
               injury and is irrelevant to a suspension of entitlement issue;


      
c)      the Court described the original injury as one of aggravated
               denigration. That must be incorrect because such
a condition would
               never have been covered.


Decision



Issue one ­ Did the Court identify the wrong issue?


[12]
  As noted by the District Court in its leave decision, this point can be viewed
in two ways. It is either an argument that the reviewer
did not have the power to do
what he did, or alternatively that the evidence did not support an inquiry into
suspension. In my view
the former is not arguable because of the plain wording of
s 145 of the Act. The latter proposition is not a question of law unless argued on the
extreme basis of absence of
evidence.           That is not credible in this case as an
argument, but in any event it overlaps with the second appeal point.
Generally I do
not accept that the original Catalyst decision remained a live issue before the District
Court. The Court rightly
focussed on the reviewer's decision.


[13]   Mr Miller's concern is that he reads Dr Hartshorn as saying only that there
was no
original injury. Once the reviewer rejected this, it is submitted that the

matter should have started afresh.        Mr Miller
emphasises that a suspension of
entitlements proceeds from a starting point that there is an injury, and inquires into
whether that
injury remains sufficiently operative to support coverage.              If
Dr Hartshorn was of the view there was no injury, his
report could not be relevant to
a suspension of entitlements inquiry.


[14]   The answer to this lies in the extract from Dr Hartshorn
already cited. In my
view it says:


       a)       there is no specific injury;


       b)       any occupational gradual process
could not explain Mr Bishop's
                current situation.


[15]   The reviewer, and then the District Court similarly read
the opinion that way.
There is no basis in this point for a grant of special leave to appeal.


Issue two ­ Dr Hartshorn's report


[16]   This has already been addressed.


Issue three ­ the Court's use of aggravated injury


[17]   Mr Miller here argues that
the Court wrongly described the injury when it
used the term "aggravated spinal injury".


[18]   However, two points can be made.
In my view it is plain the Court was
referring to a gradual process injury that has aggravated an existing condition. To
the extent
that there is injury over and above the condition, there is coverage. I have
no doubt that is what the Court was plainly referring
to. The Court had stated the
law correctly at paragraph [32] of its judgment and the later expression was in effect
a reference back
to that.

[19]    Second, nothing could turn on it. Dr Hartshorn's report, which the Court
accepted, says neither a specific injury
nor a process injury could account for the
current condition. Apart from disputing the description, Mr Miller accepted that the
opening
sentence of paragraph [35] of the Court's decision accurately captured
Mr Bishop's argument. The Court therefore addressed the correct
issue, and made
its assessment of the evidence. No issue of law arises suitable for the grant of leave
to appeal.


[20]    Finally,
on reviewing the material, I note that at one point there was an issue
concerning the correct causation test for revocation. My notes,
and recollection, is
that this was not pursued at the hearing. For completeness, however, and out of
caution, I observe I agree with
the District Court leave decision. The only issue
before the Court was suspension, so the correct revocation test is immaterial.


Decision


[21]    The application is dismissed. Mr Miller's argument essentially depends upon
a contestable reading of the specialist's
report. That report in my view is certainly
open to the interpretation it has consistently been given. It therefore supports a
decision
to suspend on the basis that the injury does not remain sufficiently
causative.    As Mr Barnett submitted, the nature of this process
is always that
someone must make an assessment. In my view no issues of law arise from the
District Court's assessment. I agree with
the decision of a different Judge of the
Court to decline leave to appeal.




                                                 
         __________________________
                                                                         Simon France J

Solicitors:
J Miller, John Miller Law, PO Box 6314, Wellington, email: [e-mail]
A D Barnett, Barrister, PO Box 3058, Wellington,
email: [e-mail]