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Jones V ACc [1981] 105 What the job of reviewers.

#1 User is offline   doppelganger 

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Posted 19 November 2017 - 01:11 PM

The is the case that Judge Trapski referred to in his decision on what is the responsibility of reviewers.

When reading this case refer to section 117 in the current legislation and ask why do reviewers make decisions that are adversary when there job is not to make adversary decisions.

Section 117

117 Corporation may suspend, cancel, or decline entitlements
(1) The Corporation may suspend or cancel an entitlement if it is not satisfied, on
the basis of the information in its possession, that a claimant is entitled to continue
to receive the entitlement.

Quote

S L Jones v Accident Compensation Commission
High Court Wellington
Administrative Division
Davison CJ
October 9, November 3, 1980
Onus ofproof-WhetherAccident Compensation Commission having onusofproofin
respect of claim of incapacity due to personal injury by accident - Whether onus to
show when right to compensation ceases -Accident Compensation Act 1972, s 113.
The appellant was in receipt of compensation under the Accident Compensation
Act 1972. The Accident Compensation Commission ceased compensation on the
basis of medical evidence that continuing post-accident disability 18 months after
the appellant's accident was attributable to osteoarthritic degeneration rather than
'due to personal injury by accident' in terms of siB of the 1972 Act. Both the
review Hearing Officer and, on appeal, the Accident Compensation Appeal
Authority confirmed the decision on the evidence. The appellant obtained special
leave to appeal to the High Court. The essential ground of appeal was that an
onus of proof lay on the Commission, once a right to compensation in respect of
personal injury by accident was accepted, to show when that right ceased.
Held: The appeal must be dismissed, for the following reasons:
I The Commission and the Hearing Officer except in special cases where the
Act required proof were not concerned with concepts of burden of proof or
proof on the balance of probabilities as normally related to civil cases. The
Commission inquired whether the claimant for compensation had rights under
the Act and if after considering all available evidence the Commission or the
Hearing Officer was brought to the view or belief that he had, then he was
entitled to compensation. An actual persuasion of the occurrence or existence
of entitlement was required (see p 108m to p 109b).
Dictum of Dixon J in Briginshaw v BriginslJaw (1936) 60 CLR 336, 361,
followed.
2 The Commission did not impose any onus on the appellant to show that his
accident was the sole cause of his disability. Nor did the Commission have any
onus to show when disability from the accident ceased. The appellant had to
adduce sufficient evidence that his incapacity was 'due to personal injury by
accident' in terms of s 113 of the Act and had not done so (see pilla).
Note
For proof and onus of proof in damages claims see 5 Abridgement, 92, paras 341
et seq.
Cases referred to in judgment:
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Briginshaw v Briginshaw (1938) 60 CLR 336
Maulder v Accident Compensation Commission (Wellington M 270/79, December
14:, 1979~ Davison CD (unreported)
Watts v Rake (1960) 108 CLR 158
106 [1981] NZACR
Appeal
This was an appeal by special leave on questions of law against a decision of the
Accident Compensation Appeal Authority, Blair J (April 14, 1978). The grounds
of appeal are set out in the Chief Justice's judgment.
P F Feenstra for the appellant.
J A L Oliver for the respondent.
Cur ado vult
DAVISON CJ. The appellant was granted special leave to appeal from a
decision of Blair J given on July 5, 1978, refusing appellant's claim for earningsrelated
compensation after September 14, 1976.
The Facts
The appellant when 57 years of age suffered a fall at work on February 5, 1975,
resulting in injury to his left leg and spine.
He was paid earnings-related compensation until early March, 1976, when he
returned to his former emplopyment but on lighter duties. A medical certificate
dated February 25, 1976, certified him as being fit for work on March 3, 1976.
On March 15, 1976, a report was obtained by the Commission from Mr R V
Jackson, orthopaedic surgeon. The report recorded that X-rays taken of appellant
showed marked degenerative changes in the lumbosacral spine with a
lumbosacral spondylolisthesis present. Mr Jackson commented:
Me Jones obviously aggravated the pre-existing osteo-arthritic changes in the lumbar
spine when he fell at work on 5.2.75. My own impression is that the sponylolisthesis
present at the lumbosacral junction is also of long standing and was not caused by
the accident in February 1975. Me Jones is now 56 years of age. It is well recognised
that os teo-arthritic changes of this nature can be present for many years and give
minimal trouble until some episode of trauma supervenes. I think that this is the
case with this particular patient.
The appellant went off work in late July, 1976, and presented to the
Commission a medical certificate dated July 29, 1976, to the effect that he was
unfit for regular work from July 26, 1976, for one week on account of 'backache'.
The appellant's claim for further earnings-related compensation was considered
by the Commission. In a letter dated September 14, 1976, to the appellant the
Commission refused further compensation and said:
Your claim for compensation has now been given careful consideration. However,
from the medical evidence available to us it is apparent that you have no further
entitlement to earnings related compensation.
This is because the medical evidence available to us attributes your continuing
disability to os teo-arthritic changes of the lumbar spine and not to your accident on 5
February 1975. Therefore, no further payments of earnings related compensation can
be made.
The appellant applied for a review of the decision of the Commission of
September 14, 1976, refusing further earnings-related compensation.
The review was held on August 31,1977, before the Hearing Officer Mr L D
Kerr. The appellant was represented by counsel. There was produced at the
hearing on behalf of the appellant a report from Mr C H Hooker, orthopaedic
surgeon. The report stated:
In the fall he inflicted injury on a markedly degenerate left hip joint and lumbar
spine. Where prior to that time he was able to manage work of a labourer, he has not
subsequently been able to manage other than light cleaning work and in my opinion
this state of affairs is likely to continue for the rest of his normal working life.
As Mr Jones claims that prior to the fall in question he did not experience any back
symptoms I believe that it must be accepted that the greater part of his now
permanent disability be attributed to the effects of the fall described. This I believe
must be accepted in spite of the fact that there cleatly pre-existed in Mr Jones' spine
marked degenerative changes and a probable degenerative lumbosacral spondylolisthesis
or forward slip of the fifth lumbar vertebra on the sacrum. In my opinion
there is no reason to consider that Mr Jones in his fall suffered more than a relatively
minor wrench of his degenerative spine but in a manof his age and with this degree
of degenerative change this is not infrequently insufficient to precipitate symptoms
such as Mr Jones hasat this stage and which are lasting and permanently disabling
to the patient.
During the course of the hearing the appellant said in evidence that before the
accident he had never had any trouble with his back and that he was able to do a
full day's work without any difficulty and also was able to run, jump, play bowls
and go boating but that he could do none of those things after the accident.
The appellant acknowledged that he suffered from a heart condition, high
blood pressure, gout and headaches and had had several periods off work since
resuming his occupation on March 3, 1976. He had obtained medical certificates
but had given them to his employer; none had been given to the Commission.
The Hearing Officer's decision on the review was:
In view of the report from the orthopaedic surgeon outlining the applicant's medical
condition and in the absence of any medical evidence that incapacity since his return
to work has been brought about as a result of the accident the application for review
must fail.
The appellant appealed to the Appeal Authority - Blair J - against that
decision.
The appeal was heard on February 27, 1980. Blair J had before him at the
appeal a series of certificates from Dr Drury covering the period from November
17,1976, to February 17, 1978, saying either that the appellant was not fit to work
because of a sore back or that he was fit to resume work. None of those
certificates related the sore back to the' accident which occurred on February 5,
1975.
In a decision delivered on April 13, 1978, Blair J held:
Although this report [Mr Hooker's report] can be construed as favourable to the
patient's claim, it must be commented that the view as expressed by Mr Hooker is
cautious. It is common ground that there is "no reason to consider that Mr Jones in
his fall suffered more than a relatively minor wrench of his degenerative spine".
Like the Hearing Officer, I am not satisfied that it has been shown that the
claimant's present incapacity for work was the result of his accident, The probability
is that at the time earnings related compensation was stopped the disability from the
fall was spent and that his incapacity since then has been due to unrelated causes.
The appeal must be dismissed.
An examination of the evidence before both the Hearing Officer and before
Blair J indicated quite clearly that the appellant had in his accident on February
5, 1975, injured a back which was already showing marked degenerative changes
in the lumbar spine. He also suffered from the other complaints already referred
to. Both the Hearing Officer and Blair J took the view on the medical evidence
that any disability caused to the already degenerated spine had been spent and
that the appellant's disability since then was probably due to other unrelated
causes. Certainly it had not been shown by medical evidence or otherwise that
periods off work subsequent to the Commission's decision to cease earningsrelated
compensation on September 14, 1976, were due to the accident on
February 5, 1975.
The Gtouads of Appeal
Counsel for the appellant at the commencement of this appeal was asked to
108 [1981] NZACR
state the matters of law which formed the grounds of the appeal. He stated four
grounds. They were:
1 The finding of Blair J that it was for appellant to show that the accident was
the sole cause of the subsequent disabilities preventing the appellant
working was wrong in law.
2 Once the appellant had shown that he suffered a disability due to the
accident of February 5, 1975, the onus shifted to the Commission to show
where the cut-off point was and when disability arising from the accident
ceased.
3 That there was no evidence that the cut-off point should be September 14,
1976.
4 The Appeal Authority was wrong in law in refusing to allow evidence of a
witness the appellant wished to call to establish that he had no disability
before the accident of February 5, 1975.
Decision
At the outset of this decision it is desirable that I say something about the onus
of proof in claims under the provisions of the Accident Compensation Act. In
Maulder v Accident Compensation Commission (Wellington, M 270/79, December
14, 1979) [unreported] I referred to the matter of proof under the Act in the
following terms:
When applications are made for compensation in terms of the Act and an applicant
determines to have the decision of the Commission reviewed by a reviewing officer,
that review hearing is not an adversary hearing. Essentially it is an investigatory
procedure in which an applicant is not required to satisfy a Hearing Officer in
accordance with the civil standard of proof and the Hearing Officer does not concern
himself with the concept of the burden of proof. It is not the function of a Hearing
Officer to try and refute an applicant's claim but rather to take a fresh look at the
Commission's primary decision aided by such information as may be put forward by
the applicant at the review hearing, and decide whether the original decision of the
Commission should be revised. There are no parties to the proceeding in an
adversary sense as one normally finds in a court of law and questions relating to the
onus of proof and the duty of an applicant to mitigate his loss do not arise as in the
normal way.
Claims for earnings-related compensation arise under s 113 of the Act which
provides that-
(1) Where as a result of incapacity due to personal injury by accident a person who
has cover in respect of the injury suffers any loss of earning capacity ... the
Commissiorr shall pay him earnings related compensation ...
All that is necessary to entitle an applicant to such compensation is that the
incapacity must be due to personal injury by accident.
In order to enable the Commission or the Hearing Officer to determine whether
in any particular case the incapacity is so due, the applicant or his representative
shall be entitled to be heard and to present any relevant evidence (see s 154(5»
and, in addition, the Commission or the Hearing Officer may receive such other
relevant evidence and make such other inquiries as it or he thinks fit and such
evidence received or ascertained shall be shown to every party to the review (see
s 154(6». On the completion of the hearing by the Commission, or on receipt of
the report of the Hearing Officer, the Commission is required to consider the
application and give a decision (see s 154(9».
The Commission and the Hearing Officer except in special cases where the Act
requires proof (see s 121) are not concerned with concepts of burden of proof or
proof on the balance of probabilities as such are normally related to civil cases.
What is done is to inquire whether the applicant for compensation has rights
under the Act. If after considering all available evidence the Commission or the
Hearing Officer, as the case may be, is brought to the view or to the belief that he
has, then the applicant is entitled to compensation. I think that what is required
under the Accident Compensation Act is best expressed by Dixon J in Briginshaw
'lJ Briginshasu (1938) 60 CLR 336, 361:
The tribunal must feel an actual persuasion of its occurrence or existence ... it is
enough that the affirmative of an allegation is made out to the reasonable satisfaction
of the tribunal.
Ground 1
The appellant's application for earnings-related compensation arises under
s 113(1) of the Act. That section provides that-
Where as a result of incapacity due to personal injury by accident a person who has
cover in respect of the injury suffers any loss of earning capacity ... the Commission
shall pay him earnings related compensation.
The Commission accepted that the appellant had suffered personal injury by
accident and, in fact, paid him earnings-related compensation until March 2,
1976. Thereafter the Commission determined that there was no evidence that any
further time off work was due to personal injury by accident.
For the appellant, however, it was submitted that once the Commission
accepted as it did that the appellant suffered personal injury by accident and was
entitled to earnings-related compensation the onus rested on the Commission to
show when the cut-off point came and when the appellant could no longer be
regarded as being unable to work due to his accident.
The court was referred in this regard to Bonnington Castings Ltd v Wardlaw
[1956] AC 613; and Watts 'lJ Rake (1960) 108 CLR 158. But those were cases
involving claims for damages at common law and the principles of onus of proof
have no application to claims under the Accident Compensation Act. There is no
adversary procedure invoked: the Commission is not a party to such a procedure.
The Commission did not impose upon the appellant any onus to show that the
appellant's accident on February 5, 1975, was the sole cause of the disability. The
way in which the Hearing Officer dealt with the appellant's application for further
earnings-related compensation was clearly set out in his decision. He said:
The applicant then went on to say that the purpose of the hearing was to have
earnings-related compensation re-established for these periods of incapacity. He was
instructed to produce medical certificates certifying him as being incapacitated for
these periods as a result of the accident but to date has not been able to do so.
The Commission was thus in this position. It had paid earnings-related
compensation to March 2, 1976. A medical certificate dated February 25, 1976,
had certified the appellant as being fit to resume normal work on March 3, 1976.
Now even to the present date the appellant has produced no medical evidence
that periods off work in late 1976, 1977 or 1978 were due to the accident on
February 5, 1976. He has been established to have had other troubles unrelated to
the accident.
The original accident on February 5, 1975, resulted in aggravation of a preexisting
osteoarthritic condition of his spine. Whether had the accident not
happened in 1975 the appellant's condition would have further deteriorated so
that he would have had the disability regardless of the accident is not known. Mr
Hooker, the orthopaedic surgeon, had said:
In my opinion there is no reason to consider that Mr Jones in his fall suffered more
than a relatively minor wrench of his degenerate spine but in a man of his age and
with this degree of degenerative change this is not infrequently sufficient to
precipitate symptoms such as Mr Jones has at this stage and which are lasting and
permanently disabling to the patient.
This comment might be helpful to the appellant had he been able to furnish a
medical certificate that later periods off work were related to the accident. But Mr
Hooker saw the appellant in July, 1977. He didn't investigate what caused the
110 [1981] NZACR
appellant's periods off work and could not certify they were due to the accident.
In those circumstances there was nothing before the Hearing Officer or the
Commission to show that the later times off work were in the words of s 113(1) of
the Act: 'The result of incapacity due to personal injury by accident'. This was
the conclusion reached by Blair J. He expressed his conclusion very succinctly.
He said:
Like the Hearing Officer, I am not satisfied that it has been shown that the
claimant's present incapacity for work was the result of his accident.
There was no question of law involved in that decision - no wrong onus was
applied as the appellant claimed. The simple fact is there was just no evidence
that appellant's inability to work during the latter periods for which
earnings-related compensation was claimed was due to the accident.
Ground 2
It was claimed that once the appellant had shown that he suffered a disability
due to the accident the onus was on the Commission to show when disability
arising from the accident ceased.
For the reasons I have given in discussing Ground No 1 there was no such
onus on the Commission. To place such an onus on the Commission is not in
accord with the provisions of the Accident Compensation Act and would impose
an almost impossible burden on the Commission in many cases.
The appellant was certified as fit to resume work on March 3, 1976. In respect
of any claim for earnings-related compensation after that date it had to be able to
reach a decision that the appellant's inability to work was due to the accident.
There was just no evidence upon which it could arrive at such a decision.
This ground raises no question of law.
Ground 3
It was argued that there was no evidence that the 'cut-off point for payment of
earnings-related compensation was September 14, 1976. That was the date the
Commission wrote to appellant pointing out that the medical evidence, namely
Mr Jackson's report, indicated that the appellant's continuing disability was due
to osteoarthritic changes in the lumbar spine and not to the accident on February
5, 1975. Applications for earnings-related compensation subsequent to that date
required to be supported by some evidence that the inability to work was due to
the accident. There was no such evidence.
Ground 4
Blair J had refused to allow the appellant to call evidence that he could work a
full day before the accident. The hearing of further evidence was in the discretion
of the judge (see s 164(3)). In the exercise of his discretion there was no
requirement for the judge to allow the evidence unless it was relevant. Now it was
not really in issue that the appellant could have so worked before the accident.
That is a circumstance commonly found in workers with degenerative conditions
of the spine. They keep on working often until a very minor strain or accident
will cause a disability. Such disability may have resulted at any time due simply
to the degenerative condition. The hearing of the further evidence would not have
assisted the appellant's case in proving that the inability to work for the periods
claimed was due to the accident.
The appellant was certified as fit to return to work on March 3, 1976. He did
return to work. There was no evidence that subsequent inability to work was due
to the accident on February 5, 1975, or to some other cause.
Blair J was not wrong in law in refusing to admit the evidence.
Conclusion
In the result, the appellant has not satisfied me that there are any questions of
law for the determination of this court on appeal. The essential question was, as
5 L Jones v Accident Compensation Commission 111
Blair J said, whether the appellant's incapacity 18 months after the accident was
caused by the accident. There was no sufficient evidence that it was. That was
essentially a medical matter. The appellant did not produce the appropriate
evidence.
The appeal must be dismissed.
As this appeal fails, as did the appeal before Blair J and also the review before
the Hearing Officer upon the ground that there was no medical evidence to link
the appellant's periods of incapacity for which he claims earnings-related
compensation to the accident, it would appear that the way is still open to him if
he is able to produce such evidence to renew his application to the Commission.
That is a matter, however, on which he should take advice.
Appeal dismissed.
Solicitors: R F Annan (Hamilton) for the appellant; Accident Compensation
Commission (Wellington) for the respondent.

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