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Ramsay V Acc Ap412 14 02 98 Act, application for leave to appeal

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Posted 20 January 2006 - 11:26 AM

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
Heard in Christchurch

AP412/14/02

UNDER
the Accident Insurance Act 1998


IN THE MATTER
Appeal and substantive appeal Pursuant to Section 165 of the Act

BETWEEN
PETER ANNAN RAMSAY
Appellant

AND
ACCIDENT INSURANCE CORPORATION
Respondent


Date of Hearing:
11th November 2002

Counsel:
P. Sara for the Appellant
C J. Hlavac for the Respondent

Date of Judgment: 12th December 2002

RESERVED JUDGMENT OF JOHN HANSEN J.

Solicitors:
Peter Sara, Dunedin for Appellant
Accident Compensation Appeals Registry, Wellington for Respondent

[1] This was an application for leave to appeal against the decision of Judge P.F. Barber, delivered on the 24th October 2001. This was opposed, but counsel were in agreement that the matter should proceed on the merits.

[2] It is alleged that the learned District Court Judge made the following errors of law:
"(i) The learned Judge misdirected himself by finding that he was bound to accept the opinion of the medical assessor in relation to work capacity unless there was some procedural flaw.
(ii) The learned Judge misdirected himself in finding that provided the work capacity assessment procedure is properly applied and followed then its outcome is virtually unquestionable.
(iii) The learned District Court Judge misdirected himself in finding that the Appellant was genuine regarding his pain and did suffer an inability to work 30 hours in the jobs nominated by the occupational assessor, but not then finding that on the balance of probabilities the Appellant did not have capacity for work.
(iv) The learned District Court Judge misdirected himself in finding in effect that an Appellant must prove that the medical assessment must be unreal in order to prove that the Appellant did not have capacity for work.
(v) The learned Judge misdirected himself in finding that the Court was prepared to accept that the medical assessors opinion was unreal on the balance of probabilities but then failed to find that the Respondent had failed to prove that the Appellant had the capacity for work."

[3] Judge Barber was faced with an appeal concerning the decision of the respondent that the appellant had the capacity to work.

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