IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-004145 [2013] NZHC 2458

BETWEEN	THOMAS JONES Appellant	

AND	
ACCIDENT COMPENSATION CORPORATION
Respondent	

Hearing:	7 August 2013	

Appearances:	
P G Schmidt for Appellant
D K L Tuiqereqere for Respondent	

Judgment:	
19 September 2013	

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 19 September 2013 at 4.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

JONES v ACCIDENT COMPENSATION CORPORATION [2013] NZHC 2458 [19 September 2013]

Introduction

[1]       In 1992 Thomas Jones was working as a shopfitter for DEKA.  He hurt his back in a work-related car accident in August 1992.   He was diagnosed with spondylolisthesis, a condition in which one vertebra slides forward over the bone below it.  Mr Jones was certified unfit for work until mid-October 1992 and received weekly  compensation  from  the  Accident  Compensation  Corporation  (ACC)  of
$367.93.  Either on his return to work or soon afterwards his role changed from shopfitter to storeman.  Both jobs involved heavy lifting.

[2]       Mr Jones continued working throughout 1993.  But he also complained to his doctor of back pain throughout 1993.  These complaints were made when Mr Jones was seeing his doctor about other things and he did not receive any further treatment for his back.  In February 1994, Mr Jones saw his doctor specifically in relation to his back pain and was certified unfit for work.   ACC accepted that he was permanently disabled as a result of the original back injury and he was paid weekly compensation until he reached the qualifying age for national superannuation. However, the work he was doing as a storeman paid less than that of a shopfitter and his weekly compensation from 1994 onwards was $322.90.

[3]       Mr Jones unsuccessfully reviewed the ACC’s assessment of his compensation entitlement.1       He  maintained  that  his  weekly  compensation  should  have  been assessed on the basis of his earnings as at August 1992 rather than February 1994 on the basis that he was, in fact, continuously incapacitated from the earlier date.  Judge Beattie dismissed his appeal against the reviewer’s decision.2    He found that, as a matter of both fact and law, Mr Jones was fit to work during the period between October 1992 and February 1994 and therefore the ACC’s assessment was correct.

[4]       Mr Jones appeals Judge Beattie’s decision. The appeal is brought under s 162 of the Accident Compensation Act 2001 (ACA).   Such appeals are confined to questions of law.  Mr Jones asserts that the Judge erred in law by:

(a)	Making findings of fact that were not supported by the evidence; and

1 Review No. 123097, 9 June 2008.
2 Jones v Accident Compensation Corporation DC Alexandra 113/2009, 3 July 2009.

(b)       Proceeding  on  the  basis  that,  as  a  matter  of  law,  a  person  who

“soldiers on” cannot be incapacitated for the purposes of ACA.

Findings of fact

[5]       It is not for an appellate court, on an appeal on a question of law, to intervene in the factual finding of the first instance court that was open to it on the evidence. Limitations on an appeal such as this are described by the Supreme Court in Bryson v Three Foot Six Limited & Ors:3

[25]      An appeal cannot however be said to be on a question of law where the fact finding Court has merely applied law which it has correctly understood to the facts of an individual case.  It is for the Court to weigh the relevant facts in the light of the applicable law.  Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding Court, unless it is clearly insupportable.

[26]      An ultimate conclusion of a fact finding body can sometimes be so insupportable – so clearly untenable – as to amount to an error of law; proper application of the law requires a different answer.  That will be the position only in the rare case in which there has been, in the well known words of Lord Radcliffe in Edwards v Bairstow a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the  true  and  only  reasonable  conclusion  contradicts  the  determination”.4
Lord Radcliffe preferred the last of these three phrases but said that each propounded the same test.

[6]       The critical factual issue for the Judge was whether Mr Jones was actually incapacitated by reason of the 1992 injury throughout the period October 1992 to February 1994, notwithstanding that he had been certified fit for work in October
1992.5  The Judge dealt with this factual issue in the following way:

[13]      The test of incapacity is largely governed by medical considerations and therefore medical evidence and opinion is paramount.

[14]     In the case of this appellant, a starting point must be the medical certificate from his GP, Doctor Hobson, dated 15 October 1992, in which he states that the appellant is again fit for work and that he would be fit to resume his normal work on 19 October 1992.

3 Bryson v Three Foot Six Ltd & Ors [2005] NZSC 34, [2005] 3 NZLR 721.
4 Edwards v Bairstow [1956] AC 14 at 36 (HL).
5 Accident Rehabilitation and Compensation Insurance Act1992, s 37.

[15]      The  Court  has  had  produced  to  it  the  medical  notes  of  Doctor Hobson which note that he saw the appellant on 15 October 1992 and issued his certificate to the respondent consequent upon that consultation.

[16]      The only other medical evidence of relevance at about this time is that of Mr Dombroski, physiotherapist, to whom the appellant had been referred by Doctor Hobson.  Mr Dombroski reported to Doctor Hobson on
28 January 1993 as follows:

“Thank you for referring Thomas to me with a lumbar spinal injury following a MVA.  I have treated Thomas six times since and he was discharged on 13.10.92 with full range pain free movement.”

[17]      It is the case that subsequently, on 22 February 1994, Doctor Hobson completed an ACC Form “Request for Approval of Payment for Additional Referred  Treatment”,  by  which  Doctor  Hobson  sought  introduction  of further physiotherapy for the appellant and which physiotherapy was approved by the respondent on 30 February 1994 [sic].

[18]      The  medical  notes  of  Doctor  Hobson  for  the  period  between19
October 1992 and 11 March 1994 show that on five occasions the appellant consulted him regarding his back condition, but at no point did Doctor Hobson certify the appellant as being unfit for work.  It is also to be noted that there was a period of some ten months, namely from 24 April 1993 to 17
February 1994 that the appellant did not seek any treatment for his back condition.

[19]     There is no other medical evidence save that of the certificates of Doctor Hobson and his medical notes made at the time of each attendance on the appellant.

[7]       Judge Beattie also relied on the evidence that Mr Jones’ position when he returned to work involved just as much lifting, if not more, than before.   Judge Beattie concluded:

[26]      Whilst it is the case that from time to time the appellant required some attention because of his back condition, at no stage does the medical evidence identify that the appellant was thereby incapacitated within the meaning of that word, and indeed he demonstrated his ability to continue in his employment by so doing.

[27]      I find there is simply no medical evidence which would establish that the appellant was incapacitated during that 14-month period.

[8]       Mr Tuiqereqere, for the ACC, submitted that these findings were open to the Judge on the evidence and that the contemporaneous medical evidence emphatically supported the finding so that there was no error of law.  However, the Judge made no reference to the three radiology reports that were available and no reference to statements by Mr Jones’ GP in a letter written in 1994.

[9]       Mr Schmidt, on behalf of Mr Jones, submitted that when one looks back over the whole of the medical evidence, it is apparent that Mr Jones never recovered from the original injury in August 1992, that the injury he sustained then produced an unstable situation that caused ongoing pain and when he was finally certified as unfit for work by reason of a permanent disability, that disability was the same disability as had existed in October 1992.

[10]    Mr Schmidt relied, first, on radiologists’ reports.   In September 1992 a Radiology Group report advised that there was a “grade 1 spondylolisthesis at the L5/S1 level with bilateral pars defects”.  A grade 1 spondylolisthesis is one in which there has been up to a 25 per cent displacement of the upper vertebra on the lower. In March 1994 The Radiology Group reported that there was a “spondylolisthesis of L5 vertabra with 1.5 cm forwards displacement of the body of L5 on S1”.  In July
1994, another radiologist reported:

There is a grade 1 spondylolisthesis of L5 on S1.  The forward slip is approximately 10 millimetres.  There are bilateral pars defects … The S5/S1 spondylolisthesis has changed little in appearance when compared with previous examinations.

[11]     Mr Schmidt’s point was essentially that these reports show that the nature and extent of Mr Jones’ injury remained consistent from October 1992.  Mr Tuiqereqere submitted that this evidence did not advance Mr Jones’ case because it is not determinative of incapacity. Mr Tuiqereqere referred on this point to the decision of Judge Ongley who refused Mr Jones leave to appeal Judge Beattie’s decision,6  in part because he did not consider the x-ray reports to be proof of incapacity but merely  evidence  of  the  structural  irregularity  of  the  spine  that  “needs  to  be interpreted by a medical practitioner in terms of the practical consequences of the injury”.7

[12]      Whilst it may be correct to say that the x-ray reports show only the physical state of the spine, I am satisfied that they are an important piece of the puzzle when
it comes to identifying the state of Mr Jones’ health during 1993.  They show that the

6 Peters J subsequently granted special leave to appeal.
7 Jones v Accident Compensation Corporation [2012] NZACC 213 at [14].

physical state of Mr Jones’ back remained the same throughout.  The other medical evidence should have been viewed in light of that fact.

[13]     Mr Tuiqereqere submitted, further, that it was significant that the orthopaedic surgeons who examined Mr Jones in 1994 did not express the view that Mr Jones had  been  incapacitated  during  the  relevant  period.    In  April  1994  orthopaedic surgeon,  Garry  Heynen,  carried  out  a  disability  assessment  and  advised  that Mr Jones:

… presents with the symptoms and findings consistent with mechanical back pain which is on the basis of a spondylolisthesis and an unstable L5, S1 segment … Considering his age and the discomfort that Mr Jones has with any stress on the lumbar spine I feel it is not advisable for Mr Jones to continue in his current job as a storeman which involves a lot of lifting and carrying.

[14]     The fact that Mr Heynen did not express a view about the period October

1992 to February 1994 has no significance because he had not been asked to do so; the question whether Mr Jones was incapacitated during that period did not arise until after Mr Jones challenged ACC’s weekly compensation assessment some years later.  Although that assessment was issued in March 1994, the ACC reviewer found that Mr Jones had not been advised of it then, an omission which led to Mr Jones being permitted to apply out of time for a review.

[15]     Mr Schmidt also relied on Doctor Hobson’s letter of 7 November 1994 to Tower Corporate Superannuation in which he provided a brief history of Mr Jones’ back injury. The doctor said:

On 8 February 1993, [Mr Jones] complained to me of low back pain and said that physiotherapy was not helping a lot.   He returned again on 23 April
1993, complaining that physiotherapy was not helping his back pain.   He also said that his time off work had not really helped much either.

He  had  a  number  of  other  consultations,  including  28  June,  2  July,  21
October, 13 November, 25 November 1993.  On each occasion he confirmed that his back was painful although no specific attention was paid as to this as the consultations were for other problems.  On 18 February 1994 he again complained of back pain and was referred for continuing physiotherapy.

[16]     This letter is, to my mind, at odds with the Judge’s finding that there was a

period of some ten months between April 1993 and February 1994 that the appellant

did not seek any treatment of his back condition.  When a patient tells his doctor at every one of five consultations over a period of ten months that his back is painful, it cannot fairly be said that he did not seek treatment for it.  What can be said is that he was not given any treatment for it but that is entirely different.

[17]     Finally, I also consider the Judge’s view at [26] that Mr Jones demonstrated his  capacity  to  work  by  continuing  to  work  to  be  flawed.    It  is  evident  from Mr Jones’ statements to his doctor that he was suffering continuous pain throughout this period.   It is also clear from Mr Heynen’s conclusion that the heavy lifting at work, which had always been part of his work, caused lumbar stress that meant he was not fit for work.  The fact that he kept going to work and putting up with the pain did not make him fit for work.  The whole of the evidence shows that Mr Jones’ fitness for work was no different in 1994 from what it had been in 1992 when he was certified unfit.

The Judge’s approach to the law on “soldiering on”

[18]     In addition to his finding of fact that Mr Jones was not incapacitated between October 1992 and February 1994, the Judge considered that there was a principle of law that a person who “soldiers on” in the face of pain or disability cannot be considered to be incapacitated while he does so:

[28]      Furthermore, in addition to the factual situation which pertained, there is in addition the legal situation which has been established by a line of decisions of this Court to the effect that where a person continues on in his employment, despite the fact of suffering from some injury which subsequently  is  accepted  as  incapacitating,  the  fact  of  the  claimant “soldiering on” means that as a matter of law the claimant cannot be considered incapacitated during the period that he did “soldier on” in his employment.

[19]     Though the Judge clearly viewed the concept of “soldiering on” as a principle of law, it is not.  The fact that a person continues to work is only evidence that may support  a  factual  finding  that  the  person  is  not  incapacitated.    Although  it  is
described in some decisions as a principle of law,8  in others it has been treated as

8  See e.g. Hansen v Accident Compensation Corporation DC Auckland Decision No 223/2009, 18
December 2009.

raising an evidential presumption9 and in Lister v ACC, Ronald Young J specifically identified the fact that a claimant continues to work is an evidential matter only,10 a description with which I respectfully agree.

Result

[20]     I  consider  that,   in   reaching  his   conclusion   that   Mr  Jones   was  not incapacitated during the period October 1992 to February 1994, Judge Beattie’s findings were contrary to the evidence as a result of the Judge failing to take into account:

(a)	The radiology evidence; and

(b)	Dr Hobson’s statements that Mr Jones had complained about back pain throughout 1993.

[21]     In addition, the Judge wrongly stated that, as a matter of law, Mr Jones could not be considered to be incapacitated during the period that he “soldiered on”.  There was no such principle of law.  The fact that Mr Jones continued to work was a piece of evidence to be considered along with the other evidence in reaching his factual finding.

[22]     The appeal is allowed.  On an appeal under s 162 ACA, this Court has the power to make any decision it thinks ought to have been made by the District Court.11   I make an order quashing the review decision, and require the Corporation
to  assess  Mr  Jones’  compensation  in  accordance  with  this  decision.12        His

compensation ought to have been $367.93 per week.

P Courtney J

9  See e.g. Vincent v Accident Compensation Corporation DC Wellington Decision No 79/2006, 4
April 2006; Parr v Accident Compensation Corporation [2012] NZACC 47.
10  Lister v ACC HC Wellington, CIV-2011-485-39, 20 May 2011, leave to appeal to the Court of
Appeal refused: Lister v ACC [2011] NZCA 625.
11 District Courts Act 1947, s 76.
12 Accident Compensation Act 2001, s 161(1)(cc) and (2)(b)