Lovelace v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 322 199 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN AARON SHANE LOVELACE of Christchurch Appellant (Appeal No. DCA 268/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 18th day of October 1999 APPEARANCES/COUNSEL A Lovelace (father) - advocate for appellant B A Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the review officer was correct to uphold the respondent's decision of 10 February 1999 in which it declined to apply the provisions of s.90(2) and s.90(9) of the Act in favour of the appellant. This matter originally came before the Court on 24 June 1998 when the appellant's advocate submitted that certain of the medical reports relied on by the review officer who had given a decision on 19 May 1997 had been obtained without the appellant's proper consent. As a result I considered that the appellant should be given the opportunity to provide his proper consent to the various medical practitioners concerned to enable them to provide and confirm their reports to enable the review to be properly reconstituted. 2 In a memorandum dated 6 July 1998, I therefore directed that the file be returned to the review officer to enable him to reconstitute a review hearing at which the properly disclosed medical reports could be available. The review officer involved then requested certain directions from the Court in relation to the reconstituted review hearing. As a result of that request I issued a further memorandum on 17 February 1999 directing the appellant that if he wished to have his claim reviewed then it was necessary for him to comply with the very proper request of the review officer to complete the consent forms necessary for the review officer to obtain the medical evidence to enable him to conduct the review. The appellant then raised the issue of whether or not the original review officer should be precluded from being involved in the review process as a result of which the respondent determined in February 1999 that as the review officer had not been involved in the issue of the respondent's original decision of 18 June 1996 he was not precluded from being involved in the review hearing. The respondent also determined that the provisions of s.90(9) did not apply as the review process had been commenced within three months of the lodging of the original review application. Those matters then went to a review hearing and the review officer upheld the respondent's decisions. At the hearing of the appeal against that decision I indicated to the appellant's advocate that I considered the decision of the review officer to be correct in that s.90(2) merely covers the position of an employee of the respondent who may have been involved in the original decision-making then being appointed to review that decision. That was clearly not the position in this case as the original review officer had not been so employed by the respondent. I also indicated to the appellant's advocate that I considered that as the application for review of the original decision was lodged on 27 June 1996 and the hearing took place on 17 September 1996, the hearing was commenced within the required time I advised the appellant's advocate that I considered that what followed thereafter was an extension of the original review brought about by his complaint in relation to the issue of consent in respect of the medical reports. I considered that this in no way affected the fact that the review hearing was commenced within the appropriate period. As I indicated to the appellant's advocate at the hearing the appeal is dismissed. DATED at WELLINGTON this 15th day of November 1999 bunnadabi A W Middleton District Court Judge Dca26899.doc(rd)