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Grove v Accident Compensation Corporation [2008] NZACC 72 (4 April 2008)

IN THE DISTRICT COURT HELD AT WELLINGTON

Decision No. 72/2008

Al 271/01, 324/01, 468/01

UNDER The Injury Prevention,

Rehabilitation, and Compensation Act 2001

AND

IN THE MATTER of an appeal by NICOLA GROVE

Appellant

AND ACCIDENT COMPENSATION

CORPORATION

Respondent

HEARD at NAPIER on 16 July 2007

DATE OF DECISION 4 April 2008

APPEARANCES/COUNSEL

The appellant by her father, Mr J Grove Mr J R Summer, counsel for ACC

DECISION OF JUDGE P F BARBER

The Issue

[1] For present purposes, the appellant has cover for a lumbar disc prolapse of 30 October 1998 (i.e. a back injury) and head and neck injuries of 28 November 1998 following an assault upon her.
[2] The following three appeals are before me:

• [a] A 25 September 2000 CRM decision (as the respondent's agent) declining to refer the appellant to a neuropsychologist (AI 271/01);
• [b] A 28 November 2000 decision by the respondent declining to refer the appellant to a neuropsychologist (Al 324/01); and

[c] A 30 January 2001 CRM decision to suspend the appellant's entitlement to weekly compensation for non compliance by declining to attend a functional capacity evaluation assessment (AI 468/01).

[3] Appeals Al 271/01 and 324/01 relate to the same issue of whether the respondent should fund a neuropsychologist requested by the appellant. For the purposes of this appeal, I refer CRM and ACC as the respondent.
[4] Since the hearing there has been an agreed sequence of submissions until 18 January 2008.

Background

[5] The appellant submitted a claim for cover with the respondent in November 1998, for contusions to her head and bruising to the back of her neck from an assault.
[6] On 8 December 1998, the respondent's log entry states "the cover status was set to 'accept' at registration". I understand that, in 1998, the claim acceptance letter would have been generated by data mail on registration with the respondent. In 1998, the claim acceptance letter was not printed for the physical file or saved to the respondent's electronic file. Accordingly, while ACC does not hold a copy of the claim acceptance letter sent to the appellant, its records confirm that the appellant has cover for the following injuries: "Contusion of face, scalp and neck — head injury, superficial".
[7] On 25 September 2000, CRM (as the respondent's agent) advised the appellant that it was unable to support a referral to a neuropsychologist. The respondent advised: "We have supported a recent CT scan and neurologist review which did not identify any abnormality." The respondent advised that it would support the appellant's participation in the focus healthback and vocational assessment.
[8] By letter of 28 November 2000, following an application from the appellant requesting prior approval of the appellant to cover costs of a neuropsychologist assessment, the respondent advised the appellant that, to enable it to approve a request for treatment funding, it must be first established that the need for treatment has arisen as a direct result of a covered physical injury caused by accident and it declined the appellant's application on that basis. That letter read:

"Dear Nicola

I write further to your recent application, requesting prior approval for ACC to cover the costs of a neuropsychologist assessment.

To enable ACC to approve a request for treatment funding, it must first be established that the need for treatment has arisen as a direct result of physical injury caused by accident, for which an accepted claim for cover exists.

As you are aware, I have recently received a report from Dr Alan Wright, along with accompanying copies of relevant documentation, such as specialist consult notes/reports, and the like.

On receipt of this information, I referred your file on to Dr John Reekie (Independent Medical Consultant) for comment.

Dr Reekie has read the medical information to hand and provided the following comment:

This lady has a long history of chronic pain syndrome, with neurological symptoms pre dating the assault.

Neurological assessment by Dr Baker was normal as was the CT scan.

Psychologist assessment has been undertaken as part of the back injury and coping with chronic pain.

Therefore there is no causal link between the current symptoms and the bruising sustained in the assault.

The symptoms may need to be further investigated as her GP suggests, but the need has not arisen as a direct result of accident/injury.

From the above information, it has been established that the need for treatment/assessment has not arisen as a direct result of personal injury caused by accident and therefore your request for assistance in this instance has regretfully been declined.

Review Rights ... "

[9] The appellant's application was declined on the basis that the appellant did not have cover for a traumatic brain injury and that there was no causal link between the appellant's current symptoms and the assault accident which took place in November 1998.
[10] On 30 January 2001 the appellant's entitlements were suspended as a result of her failure to participate in a functional capacity evaluation. That had been requested by prior correspondence dated 16, 17, 20 and 25 October 2000, and by the final suspension warning letter of 24 January 2001.

The Review Decisions

[11] By 7 May 2001 review decision, Review Officer Mrs J C Kermode held that CRM's 25 September 2000 decision was then appropriate for the following reasons:

[a] There was no evidence from Ms Grove's GP, Dr Tam, that her incapacity up to the date of the decision was affected or complicated by any head injury;
[b] The medical evidence of Mr Barker, Neurologist, was that there was no evidence of trauma to the brain; and

[c] There was no other medical evidence that she was incapacitated by a brain injury.

[12] By review decision dated 12 June 2001 Reviewer, Mrs J C Kermode, considered the respondent's 28 November 2000 decision and held:

"... It follows that I am not satisfied that the opinion of Dr Titov is such that it persuades me that ACC's decision should be overturned at this time.

Therefore the application for review is dismissed. HOWEVER, given that Dr Titov appears to query whether Ms Grove may have a neurological illness that 'may or may not' be related to her initial injuries, I recommend that ACC offer to fund a further neurological opinion on whether there is a causal connection between the injuries sustained in the November 1998 accident and Ms Grove's present symptoms and I suggest Mr Hornerbrook, Neurologist, who is situated in Wellington."

[13] A further review decision, dated 27 September 2001, addressing the respondent's 30 January 2001 decision to decline entitlements due to failure to participate in a functional capacity evaluation, Review Officer Mrs B H Archer held:

"Having considered the evidence in its entirety I am not persuaded that the evidence provides any reason why Ms Grove was unable to comply with this part of her agreed plan. I am not satisfied that when she sighted the amendment she thought it was only to agree she had read it as, as I have already identified, she complied with other aspects of the plan. The initial reason for not proceeding with the evaluation was that it was voluntary and that she would proceed with other treatment options first. Those treatment options did not relate to her back injury."

Further Background

[14] By 21 June 2006 letter, the respondent wrote to Mr J Grove advising:

"In respect of the first two appeals [271/01 and 324/01] I note that following these decisions you obtained a report at your own expense from Nick Titov, Clinical Neuropsychologist, dated 23 March 2001. I understand that ACC has since paid for that report. If that is not the case payment can be arranged through the Hawkes Bay branch. In my view there is therefore no live issue in respect of these appeals.

With regard to the third appeal (Al 468/01), I can advise that ACC concedes this appeal, i.e. ACC accepts that the appellant was not non compliant in declining to attend the functional capacity evaluation assessment. There is therefore no live issue in respect of this appeal either. The effect of this is that ACC will need to investigate Ms Grove's eligibility for weekly compensation and other entitlements since the suspension of 30 January 2001. This investigation will include consideration of whether Ms Grove is suffering from the effects of the back injury or from an injury sustained in the assault of 28 November 1998, and whether this has prevented her from returning to work since her compensation was suspended.

... If the appeals are withdrawn ACC is prepared to pay $800.00 towards the costs incurred." [My emphasis]

[15] By 5 July 2006 letter, the appellant's parents wrote to the respondent and advised that they had referred the matter to their legal advisers and would respond in due course as to whether or not the appeals would be withdrawn.
[16] By 8 September 2006 letter, John Miller Law accepted that there were no live issues in respect of appeals 271/01 and 324/01, but requested interest on weekly compensation backdated to 30 January 2001 together with an increased payment

towards the appellant's costs. By 21 September 2006 letter, the respondent responded to John Miller Law advising:

"Thank you for your letter dated 8 September 2006 and your advice that appeals Al 271/01 and Al 324/01 will be withdrawn.

With regard to Al 468/01, this appeal is restricted to the non compliance decision, which has now been conceded by ACC. If this matter were to proceed to appeal there would therefore be no live issue for the Court to consider. Eligibility to weekly compensation will depend on ACC's further investigations regarding incapacity since 30 January 2001 — a further reviewable decision will be issued in this matter.

... with regard to costs, in the particular circumstances of this case I consider that $1.200.00 is a reasonable amount." [my emphasis]

[17] In February 2007 Mr J Grove, on behalf of the appellant, advised the respondent that he had told John Miller Law that he had written directly to the respondent seeking fresh reviewable decisions and that, following receipt of these, he would withdraw these appeals. He also advised that he would liaise directly with ACC in respect of these appeals and advise the Court at his earliest convenience if the matters were resolved. I do not know the outcome from the matters referred to in this paragraph except to the extent mentioned in the next three paragraphs.
[18] On 14 July 2007, the appellant's parents wrote to the respondent stating that "with regard to the above claim, we have reviewed further the history of claims management by the Corporation, and wish to draw to your attention the fact that cover for the above claim has in fact become a deemed decision. This means that the TBI head injury which occurred on 28 November 1998 is a covered injury".

On 24 July 2007, ACC wrote to the appellant's parents, stating:

"A cover decision was made on lodgement of this claim, accepting cover for the injuries recorded at the time the claim was first registered with ACC.

The question of a traumatic brain injury arising from the same event was raised at a subsequent date. Given that cover has been accepted on this claim for the injuries recorded on registration, ACC does not believe that a deemed decision exists.

If you have any queries about this decision, please contact me. If you are still not satisfied, you can ask for an independent review of our decision. The review process is outlined in the enclosed Working Together fact sheet."

The appellant has subsequently applied to review the respondent's decision dated 24 July 2007. ACC accepts that the appellant has cover for the said head and neck injuries but not for the alleged traumatic brain injury.

Discussion

[19] I can understand counsel for ACC is uncertain what the appellant seeks to obtain by way of appeals Al 271/01 and 324/01, because the medical assessment sought has been undertaken at the appellant's instigation and subsequently paid for

by the respondent. He submits that these appeals are now academic and ought to be dismissed. I agree.

[20] With respect to Al 468/01, he submits that I am limited to the issue of the appellant's non-compliance (i.e. allegedly, failing to attend a functional capacity evaluation) and there is no longer a live issue about that, because the respondent has conceded that issue, so that this appeal ought to be dismissed also. I agree.
[21] He opined that the respondent's offer of $1,200.00 towards costs prior to this appeal (i.e. prior to the preparation and filing of submissions or a substantive consideration of the arguments on appeal) was more than reasonable in the circumstances. That is probably so, but I do not know what costs the appellant has incurred regarding these matters.

Moot or Academic Point: No live issue

[22] Counsel for ACC submits that the appellant's appeals of the respondent's 25 September 2000 and 28 November 2000 decisions should be struck out as there are no live issues remaining following the respondent's actions in meeting payment of the neuropsychologist report obtained by the appellant and agreement to withdraw the appeals. He submits that whatever the appellant seeks on appeal, the issue is academic or moot in the sense that the answer to it cannot and does not affect the rights and obligations of the parties.
[23] I agree that the respondent's decisions of 25 September 2000 and 28 November 2000 have been overtaken by events and the actions of the parties. There are no live issues in dispute in terms of jurisdiction of the District Court regarding these appeals.
[24] In Taylor v Accident Compensation Corporation (39/2006) Judge Cadenhead found there was no live issue and that the appeal was "moot". He confirmed that the New Zealand courts will not hear appeals where there is no live issue between the parties and the questions desired to be argued are academic. Judge Cadenhead also referred to the case of Maddever v Umaware School Board [1993] 2 NZLR 478, 502, where Williams J affirmed.

"The mootness doctrine is really the doctrine of standing set in a time frame; the requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness). Thus because an actual controversy must exist at all stages of the proceedings a case is moot when the issues presented are no longer live."

[25] The appellant challenges the Review Officer's decisions regarding the referral to a neuropsychologist. It is accepted that the appellant underwent a neuropsychologist assessment, the cost of which was reimbursed by the respondent. Further, the review officer recommended a further referral which was actioned. The appellant has asked the respondent to issue a new review decision with the review rights. It is not clear what this would achieve or establish, given the above steps. It is not appropriate to utilise valuable Court time to continue appeals where events since the issuing of the review decision have effectively overtaken matters. Even if appeals 271/01 and 324/01 were successful, there would be no change to what has occurred.
[26] Mr Sumner (for ACC) also submitted that this appeal is the type of situation which Viscount Simon L J was referring to in Sun Life Assurance Co of Canada v Jervis [1944] AC 111, 113-114 (cited with approval by Lord Slynn in R v Secretary of State for the Home Department, ex parte Salem [1999] 2 All ER 42, by Judge Cadenhead in Taylor (at paragraph 26), and by Judge Barber in Estate of S H v Accident Compensation and Doctors A, H and E (166/2006 at paragraph 43), when Viscount Simon L J said:

"I do not think that it would appear a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way ... I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue."

[27] In Ventec Corporation v Auckland and Tomoana Freezing Works [1990] 3 NZILR 274, referred to by Judge Cadenhead in Taylor (at paragraph 27), the Court was informed by the bar that there was no longer any live issue between the parties. At p.275 Cooke P said: "The general principle is that an appeal will not be permitted where there is no live issue between the parties and the questions desired to be argued are in that sense academic."
[28] I agree that, in accordance with these principles, there is no live issue before the Court on these appeals and the issues to be determined are moot or academic. Regardless of the outcome of this appeal the appellant cannot obtain any further statutory entitlements, and this court does not have a declaratory function.
[29] In respect of AI 468/01, the respondent has conceded that the appellant was not non-compliant and therefore that decision no longer stands. The appellant once again seeks the issuing of a reviewable decision. Also, a settlement offer has been put forward by ACC and its terms appear to be acceptable to the appellant save as to the issue of costs. As such, the only issue on which the appellant may seek the Court's guidance is on the issue of costs. Mr Sumner notes that this matter has involved significant delays and has only recently been progressed to appeal. He puts it that the appellant was tardy in progressing the matter in a meaningful manner, but received an offer from ACC of $1,200.00 towards legal costs incurred. It is also put that, in the circumstances, this offer was more than reasonable and, as such, there are no substantive grounds on which this appeal should continue given the substantive issue has been conceded. It is now submitted for ACC that, given the appellant's steps in progressing this appeal to a hearing in the absence of an issue for determination, the payment of or awarding of costs is no longer appropriate. I disagree; the $1,200.00 must still be paid to the appellant by ACC as previously contemplated.

Ulterior Purpose: Abuse of Process

[30] Mr Sumner submits that the continuation of this appeal would be an abuse of process. He puts it that he is uncertain what the motive of the appellant is in continuing with these appeals and that, as the substantive issues are not contested, there appears to be no live issue. I agree that any purpose in progressing these appeals is ulterior to the purpose of the ACC legislation and, accordingly, these proceedings are being used for a purpose ulterior to the legislation and constitute an abuse of process.

[31] There was reference to my stating in Estate of E H at paragraph 39: "It is inconsistent with the purposes of the 2001 Act to inquire into conduct of individuals when the issue about compensation for personal injury by accident has been resolved."
[32] In Waitakere CC v Kitewhaho Bush Reserve Company Ltd (AP 23102, 3 March 2004, High Court Auckland, referred to in paragraph 33 of Taylor), Randerson J said:

"[64] The jurisdiction to strike out for an abuse of process is well established in the court of general jurisdiction. Power exists, for example, under r816(c) of the High Court Rules to strike out proceedings for an abuse of process. Similar power exists under r209(c) of the District Court Rules 1991. In Commerce Commission v Giltrap City Ltd (1997) 11 PRNZ 573, Tipping J, delivering the judgment of the Court of Appeal, stated at p.579:

'Primarily, an abuse of process, as spoken of in the rule, occurs when a litigant uses the processes of the Court for an ulterior or improper purpose.'

[65] As Richardson J observed in Reid v New Zealand Trotting Conference [1984] 1 NZLR 8, 9 (CA), abuse in this context is a misuse of the judicial process which tends to produce unfairness and to undermine confidence in the administration of justice. In the same passage, Richardson stated:

'in exercising that jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. The public interest in the due administration of justice necessarily extends to ensuring that the Courts' processes are fairly used and that they do not lend themselves to oppression and injustice. The justification for the extreme step of staying a prosecution or striking out a statement of claim is that the Court is obliged to do so in order to prevent the abuse of its processes.'

[70] Some analogy may be drawn with the cases and principles decided under the Declaratory Judgments Act 1908. In cases decided under that legislation, it is well established that the general courts are usually reluctant to make declarations in the absence of any actual case or genuine dispute between the parties. For example, in Gazley v Attorney- General (1994) 8 PRNZ 313, the Court of Appeal refused to make a declaration in the absence of any concrete case. The court, at 315, cited the following passage from the speech of Lord Lorebum in Glasgow Navigation Company v Iron Ore Company [1910] AC 293:

'It is not the function of a court of law to advise the parties as to what would be their rights under a hypothetical state of facts'."

[33] I agree with Mr Sumner that with the neuropsychologist assessment having been completed and paid for by the respondent, and the substantive issue of appeal in 468/01 conceded, it is inappropriate and inconsistent with the legislation to inquire into extraneous matters outside the core issues on appeal.

Final Submissions from both Parties

[34] The appellant now requests that the Court direct ACC as follows:

[a] To recognise that the head/brain injury claim is now an accepted decision in terms of sections 65 and 66 of the Accident Insurance Act 1998;
[b] To meet unpaid fees of Dr Gil Newburn, Consultant Neuropsychiatrist;

[C] To implement a complete rehabilitation plan for the appellant incorporating both the residual back and head/brain injuries.

[35] Mr Sumner makes the general submission that the appellant's current requests fall outside the scope of the three appeals. He is correct.

[36] The appellant requests that the Court direct the respondent to recognise that the head/brain injury claim is now an accepted decision in terms of sections 65 and 66 of the Act; but the appellant has never submitted an application for cover for a traumatic brain injury, as a result of the assault on the appellant in November 1998. However, the respondent has since agreed to further investigate the appellant's claim that she has suffered a traumatic brain injury and this investigation is ongoing. That has been hampered by the appellant being unable to agree with the respondent on such matters as the appropriate expert to instruct and refusing to provide the respondent ACC with consent to obtain her medical records.
[37] In relation to a traumatic brain injury, Mr Sumner puts it that the appellant has never applied for cover for this injury and therefore cover has neither been declined nor accepted. That is the current position as I understand it.
[38] The appellant has applied for treatment, which although was initially declined by the respondent, is now being further investigated.
[39] Subsequent to the hearing of these appeals, the respondent ACC has confirmed in writing to the appellant that it does not believe there is a deemed decision about cover for the injuries of the assault. The appellant has sought to review that decision.
[40] I agree that the appellant's requests referred to in para [34] above are is outside the scope of these three appeals. Further, subsequent to these three appeals, ACC has issued a letter with review rights in relation to whether or not there has been a deemed decision. The appellant has applied to review this decision and if this proceeds to appeal, the Court will be able to determine whether or not there has been a deemed decision at that point in time, which is denied by the respondent.
[41] 1 also agree with Mr Sumner that the appellant's requests that the Court direct the respondent to meet Dr Newburn's and Dr Titov's unpaid fees are outside the scope of these three appeals. The fees to which the appellant refers were incurred after the date on which the decisions, which are the subject of these three appeals, were made. The Court cannot direct ACC to pay fees which are not the subject of these three appeals and which post-date the appealed decisions of the respondent. Nevertheless, the reports were useful and ACC should find it appropriate to pay for them.
[42] The appellant requests that the Court direct the respondent to implement a complete rehabilitation plan for the appellant, incorporating both the residual back and head/brain injuries. This request is also outside the scope of the three appeals. Further, cover has not been granted by the respondent for the appellant's traumatic brain injury. Therefore, the respondent is not obliged to complete an individual rehabilitation plan in relation to that injury.

Conclusion

[43] The appellant's said recent requests (referred to in para [34] above) are outside the scope of the three appeals.
[44] There was a sub-series of submissions about the admissibility of an unofficial tape of the review hearing of 10 and 11 April 2001 before Reviewer Mrs Kermode. Because of my above findings, and for lack of relevance, I do not need to address that admissibility issue.
[45] I also find that there are no live issues to be determined on the three appeals before the Court. Accordingly, the three appeals are hereby dismissed.

[46] In terms of ACC eventually conceding in June 2006 that there is cover for the head and neck injuries (as distinct from any traumatic brain injury) and that its suspension of entitlements was wrong; presumably, there has been satisfactory reinstatement of compensation. However, I reserve leave to apply in that respect, or regarding any consequential issues (in case I can be of assistance), even though not an issue before me.

Judge P F Barber

District Court Judge

WELLINGTON