Date of Decision: 31 August 2015 DECISION

Transcription

1 ACCIDENT COMPENSATION APPEAL AUTHORITY NEW ZEALAND [2015] NZACA 9 ACA 005/2015 Thomas Harvey Applicant Accident Compensation Corporation Respondent Before: D J Plunkett Advocate for the Applicant: Counsel for the Respondent: R Bedford D Tuiqereqere Date of Decision: 31 August 2015 DECISION INTRODUCTION [1] This is an application by Thomas Harvey for leave to appeal to the High Court against the decision of the Authority (Mr Plunkett) of 11 June 2015 (Thomas Harvey v Accident Compensation Corporation [2015] NZACA 7). [2] Mr Harvey suffered a brain injury at birth, leading primarily to late motor development and cerebral palsy. Some years later, a claim for accident compensation coverage was made, which was ultimately successful. Cover was granted for brain damage, but not for cerebral palsy which had not been diagnosed then. [3] Claims were then made for various entitlements under the legislation, including retrospective payment for attendant care, being the care that had been provided to him by his parents since birth. The Corporation declined the claim, which was upheld on review and then by me on appeal. [4] In parallel with that appeal, there was an ongoing process concerning the extent of coverage of Mr Harvey s more recently diagnosed conditions under the

2 2 accident compensation scheme and of his attendant care needs based on all the covered conditions. A further care assessment was, at the time of the appeal, being undertaken by the Corporation, following which it would make a fresh decision on care. I do not know the current state of the further assessment. [5] In seeking leave to appeal to the High Court, it is contended that the expert report on which the Corporation s decision was based, is undermined by the adoption of a threshold for care that was too high and by a lack of medical evidence. It is submitted I should have set aside the report and directed further investigation by the Corporation. [6] A number of issues are raised but the essential question for me is whether there would have been any value in directing an investigation, given the further assessment and decision-making process then underway. If an investigation should have been ordered, I would now have to consider whether the High Court should be given the ability to order one. If not, I must consider whether Mr Harvey s representative raises any flaw with the existing evidence of the Corporation s expert of sufficient importance for the High Court to address. EXTENSION OF TIME [7] The application to the Tribunal was made one day late, for the reasons given by Mr Harvey s representative. Essentially, she misunderstood the time available. The Corporation does not oppose an extension of time. Given the minimal delay which was no fault of the applicant personally, I will grant an extension. BACKGROUND [8] Mr Thomas Harvey was born premature in An incident at birth led to respiratory distress and as an infant, Mr Harvey exhibited mild gross motor delay and below average achievement with fine motor skills but no other neurological or developmental abnormalities (Dr Rowley, paediatrician, 5 December 1989). [9] A late claim for accident compensation was made in March 2011 under the current Accident Compensation Act 2001 ( the 2001 Act ), which was ultimately successful on review on 23 March The reviewer found that Mr Harvey had suffered a treatment injury and was entitled to cover under the 2001 Act. [10] The reviewer granted coverage for brain damage caused by acute hypoxic stress at birth. It is material to note the limit of coverage then accepted by the

3 3 Corporation, as an issue arose on the appeal as to the extent of coverage. Mr Harvey has recently been diagnosed with other conditions, notably cerebral palsy, which he has had since birth. He has also been diagnosed with other conditions, most of which arose in later years. To complicate matters, the Corporation has accepted coverage under the accident compensation scheme for some of the newly diagnosed conditions, but not all of them. I will return to this issue later. [11] Once coverage was determined in March 2012, there followed claims for various entitlements under the scheme. One such entitlement sought was for attendant care, being payment for the additional care that he needed as a result of the covered injury. This care had largely been provided by his mother as he was growing up. [12] On 18 October 2012, the Corporation declined the retrospective claim for attendant care for the period from 19 September 1985 (date of birth) to 30 June 1992 (expiry of the Accident Compensation Act 1982 the 1982 Act ). It was found that Mr Harvey did not satisfy the statutory criteria of constant personal attention under section 80(3) of the 1982 Act. The level of care he required resulting from the injury was less than that. The Corporation s decision had followed a written assessment dated 28 August 2012 by an occupational therapist, Ms Estelle Borer (discussed later). [13] A challenge to the Corporation s decision was dismissed on review on 6 March The reviewer agreed with the Corporation that the application fell well short of meeting the standard required. The reviewer noted the lack of independent medical evidence supporting the need for a high level of care, despite the intensive medical monitoring of Mr Harvey s condition throughout the period from 1985 to No specialist assessor s report had been produced identifying any flaws in the report of the Corporation s expert, Ms Borer. In conclusion, the reviewer found that Mr Harvey was not someone who required constant personal attention. [14] It was this decision which was appealed to the Authority. [15] I heard the appeal on 25 May 2015, though no oral evidence was adduced. Mr Harvey was present at the hearing and, while he did not formally give evidence, he did clarify some factual matters and was invited to make a personal submission at the end of the hearing, an opportunity he took advantage of.

4 4 [16] I set out in my decision the evidence of care adduced, being both the care actually provided by his parents and also the care which Ms Borer opined would have been necessary as a result of the injury. In addition, there were numerous medical and health reports concerning Mr Harvey covering the relevant period (up to 30 June 1992) and subsequently. [17] There was produced to me a transcript of the evidence given by Mr Harvey s parents, Ms Vitali and Mr Glen Harvey, to the reviewer. In particular, Ms Vitali had explained to the reviewer how her life had revolved around looking after her son, Thomas. As his physical development was delayed, there was greater risk around some activities, such as walking. He was slow to toilet train, which meant he was six months late starting school. There was an initial period when she would attend school with him. All of this required greater attention from her. Thomas was, however, quite advanced intellectually, being particularly able in his speech. When her son was about 11 or 12 years of age (well after the period at issue before me), a traumatic incident affected him, giving rise to the depression and anxiety issues he suffers to this day. [18] A comprehensive assessment had been made by the Corporation s expert, Ms Borer, of the care needs of Mr Harvey from birth until the age of 26, his age at the date of the report. During the period relevant to the Authority s jurisdiction (up to 30 June 1992), Ms Borer divided the assessment into the following age periods or stages of development; birth to one year of age (up to 2 nd birthday), aged two to three years, aged four years, aged five to six years (up to 7 th birthday). [19] Within each period, Ms Borer considered in some detail the various relevant activities, such as feeding, grooming, self-care, bathing, toilet training, physical development and independence, motor skills, sleeping, cognitive functions, behaviour, emotional needs and the like. She then excluded the care that would be provided by a parent to a normal baby, in order to arrive at the care that would have been needed as a result of the covered injury. [20] Having excluded age related care, Ms Borer found that for the period up to 30 June 1992 (at which time he was almost seven), Mr Harvey s attendant care needs arising from the injury were minimal. It gradually increased as he grew older from requiring no attendant care as a baby (because the care provided by his mother was age related) up to a maximum of seven hours and 35 minutes weekly at the age of four. Then it fell back to two hours 35 minutes per week for the ages of five and six. Within that period, for the first 20 weeks of schooling at the age of five, he would have required a total of seven hours 35 minutes per week

5 5 of attendant care resulting from the injury (since Ms Vitali stayed at school each day for part of the day to settle him in). CASE ON APPLICATION FOR LEAVE TO APPEAL [21] The Authority received submissions from the applicant s representative, Ms Bedford, on 21 July, 22 July and 13 August They are assessed later. Essentially, it is contended that the Authority made an error of law in relying on the evidence of Ms Borer, whose report was undermined by the use of the wrong threshold for attendant care and by a lack of medical evidence. The Authority should have directed a further investigation by the Corporation of Mr Harvey s attendant care needs. [22] Mr Tuiqereqere s submissions, on behalf of the Corporation, are dated 31 July and 19 August THE LAW [23] By virtue of section 391(1) of the 2001 Act, the Authority has jurisdiction to hear this application. It is to be determined pursuant to section 111 of the 1982 Act: Appeal to High Court (1) Where any party is dissatisfied with any order or decision of the Accident Compensation Appeal Authority, that party may, with the leave of the Authority, appeal to the High Court against that order or decision: Provided that, if the Appeal Authority refuses to grant leave to appeal, the High Court may grant special leave to appeal. (2) The Appeal Authority or the High Court, as the case may be, may grant leave accordingly on a question of law or if in its opinion the question involved in the appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the High Court for decision. Leave to appeal principles [24] The principles and factors applicable in considering leave to appeal on the ground of a question of law were all conveniently listed by the District Court, following a number of High Court authorities, in O Neill v Accident Compensation Corporation DC Wellington No. 250/2008, 8 October 2008 at [24], as follows: (i) the issue must arise squarely from the decision challenged and not from obiter comments;

6 6 (ii) (iii) (iv) (v) (vi) the contended point of law must be capable of bona fide and serious argument; care must be taken to avoid allowing issues of fact to be dressed up as questions of law; where an appeal is limited to questions of law, a mixed question of law and fact is a matter of law; a decision-maker s treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with the decision or the true and only reasonable conclusion on the evidence contradicts the decision; whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law. [25] It is not necessary to show that the decision-maker was wrong, only that there is a bona fide arguable question of law, a modest test (Bondarenko v Accident Compensation Corporation HC Wellington CIV , 23 February 2007 at [3] & [23]). While a case concerning special leave, the same threshold applies to leave applications. [26] The Authority s jurisdiction is not merely confined to questions of law, since leave can be granted where the question involved ought to be submitted to the High Court, by reason of its general or public importance or for any other reason. Questions of fact could meet this criterion. [27] In exercising its discretion, the Authority is mindful of the proper use of the scarce resources of the High Court. Leave is not given as a matter of course. It is for the applicant to show that the interests of justice require that leave be given (Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15], O Neill at [25]). ASSESSMENT [28] The gravamen of Ms Bedford s submissions is that I made an error of law in my earlier decision in relying on the evidence of Ms Borer, whose assessment is said to be undermined by her application of the wrong test for constant personal

7 7 attention (the statutory criterion for attendant care) and by a lack of medical evidence. [29] It is contended that Ms Borer s report should have been set aside and I should have exercised my discretion under section 108(9) (actually, 109(8)) of the 1982 Act to refer the claim for attendant care back to the Corporation. This would allow investigation by a suitably qualified medical expert to establish the evidence to be given to an assessor for a proper assessment of whether Mr Harvey needed constant personal attention under section 80(3). Relevance of unsuccessful application for adjournment earlier sought [30] The first point I note is that Mr Harvey, then represented by Mr Darke, did not seek any investigation under section 109(8) at the time of the appeal. He did, however, seek an adjournment of the hearing so the Corporation could reassess Mr Harvey s total attendant care needs, including any additional needs arising from his newly diagnosed conditions. This is dealt with at [39]-[44] of [2015] NZACA 7. [31] A preliminary issue had arisen at the hearing due to the late diagnosis, in May 2014, of a number of psychological or neurological disorders, some of which Mr Harvey had since birth and others which developed later (and would therefore be irrelevant to the appeal then before me, even if they were caused by the accident at birth). This evidence had arisen after the reviewer s decision (on 6 March 2013), subject to the appeal before me. [32] I was informed the Corporation had granted additional cover for ataxic cerebral palsy (from birth) and for mental injury (I do not know from when), but declined cover for a number of other conditions, a decision being challenged by Mr Harvey. I was not given the Corporation s fresh decision on coverage, nor had I seen the challenge (which, at that time and even now, has not reached the stage of an appeal before the Authority). [33] I was told by the representatives at the appeal that this challenge (to both coverage and attendant care) had led to an ongoing process, with a further attendant care assessment being obtained from a different expert. I was given a short additional report already obtained from Ms Borer (1 April 2014) as to Mr Harvey s additional attendant care requirements (since birth), as a consequence of the extended coverage by the Corporation for ataxic cerebral palsy (but not mental injury). Ms Borer essentially concluded that no further

8 8 supervision would have been required and that her report of 28 August 2012 remained valid. [34] The requested adjournment was declined by me for the reasons listed at [44] therein. In essence, I said that the issue before me did not depend on the accurate diagnosis of his multiple conditions, but instead on his needs, behaviour and symptoms during the relevant period. [35] Moreover, any fresh evidence as to Mr Harvey s attendant care needs arising out of the newly diagnosed conditions and the further assessment being undertaken, could ground a new challenge to the future decision as to attendant care (since birth) the Corporation would make once it had that fresh evidence. In other words, Mr Harvey could return to the Authority on the basis of any fresh evidence (as to the totality of his attendant care needs arising from all the covered injuries/conditions) and the new decisions on attendant care to be made first by the Corporation and then by a reviewer. [36] Given the ability of Mr Harvey to return to the Authority if dissatisfied with future decisions to be made (on both coverage and attendant care), I do not see any real benefit to him in appealing my decision to the High Court, except as to the assessment of his attendant care needs arising from the existing evidence of medical and health practitioners. That is what I finally decided, subject to the High Court finding otherwise should the matter proceed there. Furthermore, that is all I decided. [37] I accept that, if the section 109(8) investigation, which it is now said I should have ordered, was to produce evidence that Mr Harvey s attendant care needs were greater than those previously thought (based on Ms Borer s assessment), then there would have to be a fresh decision by the Corporation reflecting those greater needs. [38] However, that is precisely what I envisaged occurring anyway, without any investigation being ordered by me. The representatives at the appeal had informed me that the issues of coverage (as a result of the newly diagnosed conditions, including those he had since birth) and any additional attendant care arising from the further conditions accepted for cover, were subject to an ongoing process. If dissatisfied with the Corporation s decisions, which in respect of attendant care had not been made, Mr Harvey could ultimately return to the Authority.

9 9 [39] It follows that I do not see the value of inviting the High Court to direct an investigation which is occurring anyway. It has no more value today than that option had at the time of the appeal before me. The real issue here therefore lies in whether I am wrong in my conclusion concerning the existing evidence of attendant care. Whether Ms Borer adopted an unduly high threshold of care [40] The relevant entitlement provision of the 1982 Act is section 80(3): 80 Compensation for pecuniary loss not related to earnings... (3) Where a person suffers personal injury by accident in respect of which he has cover and the injury is of such a nature that he must have constant personal attention, the Corporation, having regard to any other compensation payable, may pay to that person, or if it thinks fit to the administrator of that person, such amounts as the Corporation from time to time thinks fit in respect of the necessary care of the person in any place of abode or institution.... [41] The threshold for constant personal attention under section 80(3) is set out in my earlier decision ([2015] NZACA 7 at [32]-[36]). It is not contended that I misstated the threshold. In summary, it is regarded as a high level of care. It must be constant, so personal care over 24 hours is required, though it can be a fluctuating level of care. Most of the time, it would be one to one, but it need not be at such a high level 24/7, particularly at night. [42] Ms Bedford submits that Ms Borer adopted a threshold that was too high, since the expert s conclusion in respect of Mr Harvey is said to have been that constant 1:1 supervision was not required at any stage (submissions 21 July, [34]). [43] The phrase constant 1:1 supervision is used by Ms Borer only once and that is in her supplementary report of 1 April It was in the context of assessing attendant care while Mr Harvey was in a classroom at school and, in my view, correctly identifies the threshold for attendant care while at school. I do not see how being in a class of 25 at school can meet the threshold without the presence of a dedicated parent or teacher aide, as Ms Borer states, though I suppose an aide might be able to supervise another child at the same time (and still meet the constant personal attention threshold). There is no evidence from Ms Borer s primary report that she misunderstood the threshold.

10 10 Whether Ms Borer s report undermined by a lack of medical evidence [44] Ms Bedford contends that the medical evidence obtained by the Corporation was inadequate and that Ms Borer s report was undermined by this lack of expert evidence. [45] It is submitted that the Corporation should have obtained a comprehensive assessment by a suitably qualified medical expert, such as a specialist in the area of brain injury and rehabilitation. This would take account of all Mr Harvey s conditions, including those newly diagnosed. The assessment would deal with the impact of all his recognised conditions on his functioning during the relevant period. [46] Ms Borer s curriculum vitae was provided to the Authority (pp of the joint bundle). She is an occupational therapist with considerable experience in assessing the needs of injured persons, including children and those with brain injuries and/or cerebral palsy. Her expertise and qualification to produce such reports was not questioned by Mr Harvey at the appeal. [47] At the appeal, Mr Harvey did not produce any expert report from an occupational therapist, rehabilitation nurse or medical practitioner of his own, as to his attendant care needs at the relevant time. [48] There was no lack of medical evidence available to Ms Borer (see list p3 of her report) and before me at the hearing. Indeed, the joint bundle of documents, 345 pages in length, largely comprised medical and health practitioner reports and assessments. Much of this was contemporary with the period of care relevant to the appeal and therefore of greater value than what might be obtained retrospectively today. [49] Many of the reports were referred to by the representatives at the hearing or were otherwise considered by me to be material, and are referred to in my decision. I will not identify every report referred to in my decision, but throughout the Background and Assessment sections of the decision, medical reports have been referred to where material. My decision is not based solely on the opinion of Ms Borer (whose report I found compelling see [59]), but I gave weight to the opinions of medical practitioners, other health practitioners and indeed the evidence of care given to the reviewer by Ms Vitali. [50] I do not accept that any further medical evidence as to the correct diagnosis of Mr Harvey s conditions in his younger years would have helped. This is

11 11 because my assessment under section 80(3) depended on his needs, behaviour and symptoms (including the lack of them) during the period, not a comprehensive, accurate and retrospective diagnosis of his multiple conditions. This is the primary reason I gave for declining the adjournment, on essentially the same ground. [51] It is correct that additional medical or health evidence as to the effect of his symptoms and disability on his functioning, and therefore on his care requirements and how this compared with a normal child, would have been relevant (whether arising from additional coverage or not). That would be particularly so, if Ms Borer s assessment was being challenged. However, Mr Harvey could have adduced such evidence, to the Corporation, on review or to me, but at no stage of the decision-making process did he do so. [52] Moreover, the diagnosis more recently of additional conditions (partially accepted by the Corporation) has given Mr Harvey a fresh opportunity to adduce further evidence of how the totality of his disability and conditions (to the extent granted coverage under the scheme) affects what would have been his attendant care needs from birth. My earlier decision does not preclude a fresh look at his entire attendant care requirements since birth, a process which was underway at the time of the appeal. [53] Ms Bedford draws attention to certain passages in Ms Borer s report in which the latter identifies a lack of medical information as to Mr Harvey s functioning at certain ages in relation to certain tasks (for example, see submissions 21 July, [24] & [27]; Ms Borer s report pp 8,11). [54] These and other passages in Ms Borer s report highlight a lack of factual evidence establishing difficulties in Mr Harvey s functioning, not any lack of expert medical opinion or diagnosis. Indeed, the lack of contemporary factual evidence as to any difficulties with certain tasks is material. If the medical and health practitioners then treating Mr Harvey were not observing or having reported to them by his parents any serious problems in specific areas of functioning, that lack of evidence was material to my assessment. It tends to show that the specific task was not a problem giving rise to the need for attendant care. [55] A lack of such evidence is not an evidential void that can be cured by expert evidence obtained today. As I said in refusing the adjournment ([2015] NZACA 7 at [44]), it was Mr Harvey s behaviour and symptoms (or lack of them) during the

12 12 relevant period, that was material to the assessment of the extent of attendant care he needed. Relevance of actual historic care provided by the parents [56] As to the relevance of the care actually provided by Mr Harvey s mother to the assessment of his attendant care entitlements (what should have been provided by the Corporation), Ms Bedford submits that the higher courts have consistently held that the level of care or supervision actually provided is not the determining factor. That is correct and that is the approach Ms Borer took, as did I. Of course, it is highly material to look at what was actually provided as part of the totality of evidence, in determining what was needed and to which he was and remains statutorily entitled. Costs [57] It is contended by Ms Bedford that my practice of reserving costs (said to be to the Corporation ), including in the instant appeal, is contrary to law. [58] This argument is difficult to follow. First, I did not reserve costs to the Corporation, but to any party. It is a standard reservation in virtually all my decisions, irrespective of the outcome. Such a reservation does not infer any particular costs outcome. Second, my practice is always to set out a timetable for any costs claim in the substantive decision. This will prompt a party seeking costs to do so forthwith and avoids the delays inherent in separately issuing directions subsequent to a claim for costs. [59] Should a claim be made, any award of costs would be made in accordance with the law, following memoranda from both parties. Conclusion [60] To the extent the exercise of my discretion (whether or not to use section 109(8) to order a further investigation and assessment) raises a question as to the appropriate outcome of the appeal, I do not accept that there is value in submitting this matter to the High Court to potentially order such an outcome. This is because of the further assessment that is already underway and Mr Harvey s ability to return to the Authority in the future, if he is dissatisfied with future decisions to be made on the totality of his attendant care needs.

13 13 [61] I conclude that Mr Harvey has not raised any question of law, nor any question of general or public importance, justifying the attention of the High Court. [62] While ultimately matters for the High Court, should the appeal proceed there, I did not misinterpret or misapply the law on constant personal attention, nor did Ms Borer. There was no lack of medical or expert or factual evidence on which Ms Borer s conclusions and my own findings were based. Indeed, there was considerable evidence of Mr Thomas functioning and symptoms (and the lack of them), and of the care provided. Nor is there an issue of law or fact which, for any other reason, warrants the consideration of the High Court. [63] The interests of justice do not require that leave to appeal to the High Court be given. OUTCOME 1. The Authority declines Mr Harvey leave to appeal to the High Court from the decision of 11 June Costs are reserved. Any party seeking costs may do so within 21 days, with submissions from the other party within 14 days thereafter. D J Plunkett