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B v Accident Compensation Corporation [2016] NZACC 114 (29 April 2016)
Last Updated: 10 May 2016
IN THE DISTRICT COURT
AT NAPIER
[2016] NZACC 114 ACR 411/14
UNDER THE ACCIDENT COMPENSATION ACT 2001
IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT
BETWEEN B
Appellant
AND ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 21 March 2016
Appearances: Appellant on own behalf
Mr P McBride for the respondent
Judgment: 28 April 2016
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RESERVED JUDGMENT OF JUDGE DENESE HENARE
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[1] The appeal arises from a review decision of 20 October 2014. The Reviewer dismissed the application, finding the Corporation’s letter of 4 June 2014 is not a decision capable of review. The letter dealt variously with consent and information held by the Corporation, concerns with not receiving payment detail information, what the payment details related to, and concerns with the review process and review hearing conducted by Fairway Resolution Limited.
[2] This Court has previously considered an application from the appellant challenging a decision of the Corporation to suspend entitlements relating to cover for herpes simplex virus (HSV). The Court recorded:
[2] This Court has previously considered an application from the appellant challenging a decision of the Corporation to suspend entitlements relating to cover for herpes simplex virus (HSV). The Court recorded:
[7]It is the case that the appellant was not in receipt of any entitlements at the date of the decision and the only entitlement that had been sought and which gave rise to the decision in question, was a request by her for an independence allowance, that request seeking that allowance in respect of her identified Chronic Fatigue Syndrome (CFS).
[8]The point in issue in this appeal is whether the appellant’s Chronic Fatigue Syndrome was either a medical condition for which she had received cover back in 1986 consequent upon her employment as a registered nurse, or alternately whether that CFS was an accepted consequence of the personal injury for which the appellant did receive cover back in 1986 and which was contended to be Herpes Simplex virus (HSV).
[9]The main problem with dealing with the issue in this appeal some 20 years after the claim for cover was made, was the fact that after an initial period of about a year, namely between March 1986 and March 1987, the appellant had no further contact with the Corporation, there being no ongoing claims or entitlement sought, and it is the case that the Corporation’s file on this appellant’s 1986 claim was destroyed in 1999. Thus the repository of details regarding the claim and cover no longer exists.
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[20] Having considered the evidence, such as it is, I find that it is simply insufficient to identify that the appellant was granted cover for Chronic Fatigue Syndrome, or indeed that she had such a condition at that time.
[8]The point in issue in this appeal is whether the appellant’s Chronic Fatigue Syndrome was either a medical condition for which she had received cover back in 1986 consequent upon her employment as a registered nurse, or alternately whether that CFS was an accepted consequence of the personal injury for which the appellant did receive cover back in 1986 and which was contended to be Herpes Simplex virus (HSV).
[9]The main problem with dealing with the issue in this appeal some 20 years after the claim for cover was made, was the fact that after an initial period of about a year, namely between March 1986 and March 1987, the appellant had no further contact with the Corporation, there being no ongoing claims or entitlement sought, and it is the case that the Corporation’s file on this appellant’s 1986 claim was destroyed in 1999. Thus the repository of details regarding the claim and cover no longer exists.
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[20] Having considered the evidence, such as it is, I find that it is simply insufficient to identify that the appellant was granted cover for Chronic Fatigue Syndrome, or indeed that she had such a condition at that time.
[3] The Court found insufficient evidence to identify the appellant had received cover for Chronic Fatigue Syndrome (CFS). The Court dismissed the appeal on the basis of no causative link between the covered HSV and her current CFS, and the decision “that the appellant be not eligible for entitlements in respect of CFS was the correct decision.”
[4] The appellant says the decision was received “well after the appeal period was over”, and an appeal to the High Court was not possible.
[5] In a second decision of this Court, the appellant’s application for a deemed decision was dismissed because the substantive issue had already been determined in the first decision.
[6] I consider it is necessary and appropriate to protect the privacy of the appellant. This order, made under s160(1) of the Accident Compensation Act 2001, forbids publication of the name, address, or occupation, or particulars likely to lead to the identification of the appellant. As a result, this decision shall henceforth be known as B v Accident Compensation Corporation.
[7] A summary of the history taken from the first decision of the Court is as follows:
[8] Consistent with the Corporation’s view that the letter of 4 June 2014 was not deciding anything (and certainly not issues of cover), it did not attach review rights.
[9] On 29 October 2014, the review application was dismissed on two distinct grounds. First, the 4 June 2012 letter was not a decision in terms of s 6 and s 134 of the Accident Compensation Act 2001 (the Act), and so could not accord rights of review. Secondly, the appellant sought to have “the right cover decision and entitlements to be reinstated”. However, these issues had already been decided by the District Court.
The Case for the Appellant[4] The appellant says the decision was received “well after the appeal period was over”, and an appeal to the High Court was not possible.
[5] In a second decision of this Court, the appellant’s application for a deemed decision was dismissed because the substantive issue had already been determined in the first decision.
[6] I consider it is necessary and appropriate to protect the privacy of the appellant. This order, made under s160(1) of the Accident Compensation Act 2001, forbids publication of the name, address, or occupation, or particulars likely to lead to the identification of the appellant. As a result, this decision shall henceforth be known as B v Accident Compensation Corporation.
[7] A summary of the history taken from the first decision of the Court is as follows:
- In 1986 the appellant was employed as an orthopaedic nurse at a hospital. She was then aged 24 years.
- The hospital records identify that the appellant had contracted Herpes Simplex in February 1986 from a patient in the ward, and from that time she had not felt well.
- On 13 March 1986 the appellant lodged a claim for cover for that injury which was described as “HSV infection”.
- Those records show the appellant had been seen by Dr Gow, Rheumatologist, in December 1985, because of presentation of depression and possible Fibromyalgia.
- In February 1987 Dr Gow examined the appellant and reported symptoms consistent with Fibromyalgia that had first been apparent in December 1985. That report also indicated the appellant had developed Herpes simplex in the forearem with secondary infection.
- In March 1987 Dr Gow referred the appellant to Dr Armstrong, Psychiatrist.
- In August 1987 the appellant went overseas and returned to New Zealand in 2001.
- The action which brought about the decision in issue was an application made by the appellant on 22 November 2005 for lump sum/independence allowance for CFS.
- The medical certificate from the appellant’s GP, identified the appellant’s injury as being an infection at work, sustained in 1986. He went on to state the appellant’s current treatment was for her CFS.
- The Corporation initially sought the advice of Dr Barnard, Occupational Physician and Clinical Director of ACC Workwise who advised there was no link between the HSV infection and CFS.
- Relying on Dr Barnard’s advice the Corporation issued its decline decision of August 2006 [subject of the appeal].
- The appellant sought a review of that decision and after receiving that application for review it was agreed between the appellant’s counsel and the Corporation that further expert evidence be obtained for her claim for entitlements for CFS. The specialist chosen was Mr Meech, a Consultant Physician and Specialist in Infectious Diseases who reported in February 2007 that any link between contracting HSV and the development of CFS, would be an unusual occurrence.
- Following Dr Meech’s report the Review hearing proceeded. The Reviewer’s decision in December 2007 was that the appellant had cover for a skin infection but she could not have cover for CFS from which she presently suffers. The Corporation’s primary decision was also confirmed in the first decision by this Court that the appellant was not eligible for entitlements in respect to CFS.
[8] Consistent with the Corporation’s view that the letter of 4 June 2014 was not deciding anything (and certainly not issues of cover), it did not attach review rights.
[9] On 29 October 2014, the review application was dismissed on two distinct grounds. First, the 4 June 2012 letter was not a decision in terms of s 6 and s 134 of the Accident Compensation Act 2001 (the Act), and so could not accord rights of review. Secondly, the appellant sought to have “the right cover decision and entitlements to be reinstated”. However, these issues had already been decided by the District Court.
[10] The appellant’s submissions indicate her frustration in the appeal:
I only applied for the Independence Allowance. It wasn’t until I rung up to complain about the ridiculous cover decision that my payment details were found that my case was labelled ‘high risk’. I would have been satisfied with that. I wrote Weekly Compensation because I thought that I would get an extra $20-30 weekly to help with my medical costs. ACC’s reaction then was way over the top for this. It didn’t need to get this far.
It is not pleasant to discover that my claim was deemed to be too expensive for ACC. What about the cost to me. I want to be able to work. That is why I reactivated my claim. It is near on impossible to access any medical care through the DHB here ...
My notes, which relate to my Chronic Fatigue Symptoms were misused and abused in that there is only a brief mention of the causative infections. There is absolutely no proof that the cover was for the common cold sore which Dr Makay wrote in her report which ACC ignored.
Note – I had two infections together. The other being MRSA which ACC have refused to acknowledge.
I would like to be able to see a more knowledgeable Infectious Disease specialist than Dr Meech. He told me that yes, the infections caused my Chronic Fatigue. He also said I would be like this the rest of my life. Then he wrote in his report something completely different as he was paid by ACC to give them the response that they want. I suffer from constant infections, up to 10 a year in a bad year. I start to improve, to the point of thinking that I would be ready to go to work. I do too much, and then get ill again. I have already had a life threatening allergic reaction to penicillin and my worry is that the antibiotics wouldn’t work anymore.
Dealing with ACC has been like a bizarre game of chess. Which is why I am not satisfied with their apologies. I liken it to apologising after deliberately opening the stable door after the horse has bolted, never to be seen again. Every time I complained to the Ombudsman or the Privacy Commissioner they fabricated completely false responses. Then I would get patronising letters which irritated me. It meant that I felt that I would never be taken seriously.
ACC were so determined to win at all costs, in my view, acting in deliberate and malicious manner. When I did complain about having the payment details deliberately withheld, all they could think of is that I wanted weekly compensation. It is not nice when you get told that you are too expensive. I was told that when I had the infections. That is why I am like this now. I was not treated adequately at the time...
I have continued with this claim, not for money, but for the principle of justice.
It is not pleasant to discover that my claim was deemed to be too expensive for ACC. What about the cost to me. I want to be able to work. That is why I reactivated my claim. It is near on impossible to access any medical care through the DHB here ...
My notes, which relate to my Chronic Fatigue Symptoms were misused and abused in that there is only a brief mention of the causative infections. There is absolutely no proof that the cover was for the common cold sore which Dr Makay wrote in her report which ACC ignored.
Note – I had two infections together. The other being MRSA which ACC have refused to acknowledge.
I would like to be able to see a more knowledgeable Infectious Disease specialist than Dr Meech. He told me that yes, the infections caused my Chronic Fatigue. He also said I would be like this the rest of my life. Then he wrote in his report something completely different as he was paid by ACC to give them the response that they want. I suffer from constant infections, up to 10 a year in a bad year. I start to improve, to the point of thinking that I would be ready to go to work. I do too much, and then get ill again. I have already had a life threatening allergic reaction to penicillin and my worry is that the antibiotics wouldn’t work anymore.
Dealing with ACC has been like a bizarre game of chess. Which is why I am not satisfied with their apologies. I liken it to apologising after deliberately opening the stable door after the horse has bolted, never to be seen again. Every time I complained to the Ombudsman or the Privacy Commissioner they fabricated completely false responses. Then I would get patronising letters which irritated me. It meant that I felt that I would never be taken seriously.
ACC were so determined to win at all costs, in my view, acting in deliberate and malicious manner. When I did complain about having the payment details deliberately withheld, all they could think of is that I wanted weekly compensation. It is not nice when you get told that you are too expensive. I was told that when I had the infections. That is why I am like this now. I was not treated adequately at the time...
I have continued with this claim, not for money, but for the principle of justice.
[11] The appellant states that HSV, the common cold sore, lasts a maximum of 10 days instead of the 13 months for which she received weekly compensation and “it is too ridiculous that a claim for the common cold sore was ever accepted”.
[12] The claim goes back to 1986. With the passage of some 30 years, recording systems, processes and the like were then far less structured than is the case now. The letter of 4 June 2014 seeks to explain some of these issues. At hearing, the appellant stated her weariness with receiving notes of apology.
[13] The appellant submitted her claim was labelled ‘high risk’ which meant the Corporation did not then want to investigate the claim properly because of expense. The appellant referred to documents in support of her contention. The appellant referred to a note from a case manager dated 25 June 2008 that:
[12] The claim goes back to 1986. With the passage of some 30 years, recording systems, processes and the like were then far less structured than is the case now. The letter of 4 June 2014 seeks to explain some of these issues. At hearing, the appellant stated her weariness with receiving notes of apology.
[13] The appellant submitted her claim was labelled ‘high risk’ which meant the Corporation did not then want to investigate the claim properly because of expense. The appellant referred to documents in support of her contention. The appellant referred to a note from a case manager dated 25 June 2008 that:
Branches manage high risk, ie those claims that require a lot of assistance to return to work or those that will require substantial investigations to determine whether entitlement exists.
[14] The appellant also referred to a note of 14 March 2006 from a case manager that:
It is not clear what cover was granted originally...
It might be helpful to know what entitlement is currently requested-I’m unsure and if it is simply funding wrist braces it might be more cost effective to fund them (with no guarantees of future entitlements) rather than try to clarify 20 year sequences.
It might be helpful to know what entitlement is currently requested-I’m unsure and if it is simply funding wrist braces it might be more cost effective to fund them (with no guarantees of future entitlements) rather than try to clarify 20 year sequences.
[15] The point made in the letter of 4 June 2014 is if there is cogent evidence for cover for a condition that is not currently the subject of cover, the door is open. The Corporation stated in the letter:
Should any additional information be made available that could influence the decision then ACC would be more than happy to review this information and reconsider the decision.
[16] This point was re-emphasised by Mr McBride in his submissions at hearing.
[17] The process leading to the first decision of the Court has a history. The Judge noting the appeal had been part-heard in September 2009 to enable a report to have been obtained from Dr Meech. The report from Dr Meech was not forthcoming until January 2010 and it was agreed by counsel for the parties (the appellant was then legally represented) that the matter could be considered afresh by the Court in 2011, and determined on the papers.
[18] The decision in the ordinary process would have been provided to the appellant’s counsel then acting, rather than to the appellant directly. If the appellant did not receive the decision within the time for lodging an appeal to the High Court, that would be a matter between the appellant and her then legal representatives.
Issues in this appeal for determination<blockquote>[19] The issues for determination in the appeal relate to:<ul type="none"><li style="text-indent: 0pt; margin-top: 0pt; margin-bottom: 0pt;" "=""[i] Late filing of the appeal;/lili style="text-indent: 0pt; margin-top: 0pt; margin-bottom: 0pt;" "="">[ii] Issue estoppel; and
[17] The process leading to the first decision of the Court has a history. The Judge noting the appeal had been part-heard in September 2009 to enable a report to have been obtained from Dr Meech. The report from Dr Meech was not forthcoming until January 2010 and it was agreed by counsel for the parties (the appellant was then legally represented) that the matter could be considered afresh by the Court in 2011, and determined on the papers.
[18] The decision in the ordinary process would have been provided to the appellant’s counsel then acting, rather than to the appellant directly. If the appellant did not receive the decision within the time for lodging an appeal to the High Court, that would be a matter between the appellant and her then legal representatives.
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