Campbell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 90/ 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ALAN CAMPBELL of Blaketown Appellant (Appeal No. DCA 212/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr M M Bell on behalf of the appellant and from Mr A R Davie on behalf of the respondent with the request that I issue a decision on the papers. The issue in this appeal is whether the respondent was correct to decline the appellant's application for review of a decision dated 13 December 1994 on the grounds that it was out of time. The background to the appeal is that the appellant had been in receipt of earnings related compensation as a result of an injury to his back which he had sustained on 22 February 1987. Earnings related compensation was paid from 22 December 1989 until the respondent notified the appellant on 6 March 1992 that it proposed to cease the further payment as from 1 April 1992. That decision also contained the usual rights to review and on 7 April 1992 the appellant's solicitors requested an administrative review of that decision. That application was declined on 14 April 1992 and on 22 April 1992 the appellant's solicitor requested additional information and at the same time asked for a review of the decision. A favourable review followed and the decision itself was delivered on 7 December 1992. N On 2 December 1994 the respondent requested the appellant to attend a case conference meeting on 9 December 1994. In a file memorandum dated 9 December 1994 it is stated that the appellant attended the meeting at 11 am on that day at which were present the respondent's local Branch Manager, an Investigating Officer and the appellant's Case Manager. The memorandum states that the respondent's representatives told the appellant that it had evidence that the appellant had been seen white baiting, painting roofs and using a chainsaw on the beach. The appellant denied that he had been white baiting and explained that he had only been there watching others.-He conceded that he had been using a chainsaw on the beach, but did not accept the evidence that he had been painting roofs and wanted information as to who had made these statements. On 13 December 1994 being four days after that meeting, the respondent wrote to the appellant advising him that "due to information received by the Corporation, weekly compensation payments to you will cease on 8 January 1995, being 4 weeks from the date of this letter". The letter went on to confirm that the decision was made pursuant to s.73(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 and advised the appellant of his right to apply for a review. The letter also advised that if the appellant wished to have a review of the decision the application for that had to be made within three months of the date of that letter. On 22 December 1994, the respondent again wrote to the appellant giving the reasons for the cessation of weekly payments being the matters which had been discussed at the meeting on 11 December 1994 and including the statements that he had been seen playing bowls and competing in competitions which had been documented in the local evening paper. The appellant's solicitors then wrote to the respondent on 23 January 1995 requesting further information in regard to the respondent's decision to cease payments of compensation. The respondent was not able to supply the requested information until 6 March 1995. A further letter from the appellant's solicitors on 15 March 1995 requested further information. This was supplied by a letter dated 23 March 1995. On 29 March 1995 the appellant lodged an application for review of the decision made in December 1994, that application being dated 24 March 1995. The respondent notified the appellant that as three months had elapsed since the primary decision had been issued the application for review was out of time and accordingly could not proceed. The appellant's solicitor took exception to this statement on the grounds that he considered that the application could not have been filed until after all the information requested from the respondent had been obtained and that it was not then open to the respondent to rely "on its own dilatory conduct" to prevent the review proceeding. The review officer issued a decision on 25 August 1995 in which he considered that he was bound by the decision in Zehnder (73/95) and declined the application 3 for review. He also held that the effective date for the filing of the application was three months from the 22 December 1994. Mr Bell has submitted that the wording of s.89(5) of the Act used the word "may" rather than "shall" when referring to the time when a review application is to be filed. He submitted that unless there was some discretion, applicats for review could suffer hardship if the strict interpretation was adopted and the time limited specifically to three months only. He submitted that at all times the respondent was aware of the appellant's attitude and his need to obtain further information to clarify the position before an application for review could be lodged. He submitted that it would be unjust if the Corporation's dilatory conduct in providing reasons and disclosing sufficient information could be used to the respondent's advantage. He submitted that pursuant to s.67(2) there is an obligation on the respondent to provide reasons for its decision. He submitted that the review officer had held that the letter of 22 December 1994 setting out the reasons should be taken as the conclusive date for the primary decision from which the time for filing the review should run. He submitted that the review officer had therefore held that the Corporation's decision was not legally completed until 22 December 1994. Mr Bell submitted that on that basis, as that letter did not again repeat the rights of review, the respondent had failed to carry out its obligations under the Act. Mr Davie submitted that the review officer was correct in applying the decision of Zehnder to the facts of this case. He submitted that while the previous Accident Compensation Acts of 1972 and 1982 required review applications to be filed within one month there was a discretion included in those Acts which permitted later review applications in certain circumstances. He submitted that the 1992 Act had extended the time limiting to three months, but removed discretion. Mr Davie referred to the appellant's history that the respondent from which he said that it could be seen that he was well aware of the requirements of the review process. He submitted that when the appellant received the letter of 13 December 1994 he was aware of the reasons for it because of the meeting which he had attended on 9 December 1994. The letter of 22 December 1994 merely completed the balance of the requirements of a primary decision and he conceded that that letter was the trigger for the three month period. I do not accept Mr Bell's submission that because the appellant was waiting further information requested from the respondent this waived the requirements to file the application for review within the three month period. The letter of 13 December 1994 was made following the meeting at which the respondent's concerns were well covered and included the notification as to the time in which a review application could be filed. I do not accept the submission that at that time the appellant was unaware of the respondent's reasons for its decision. The letter of 23 December 1994 merely confirmed the basis of the reasons which had been canvassed at the earlier meeting. I consider that these taken together amply constitute proper notice within the meaning of the requirements of the Act and fully comply with the requirements of s.67(2). While Mr Bell submitted that a 4 failure to comply with s.67(2) in this case should be fatal to the respondent's position a reading of that section is not nearly so specific, particularly when the last portion of it is considered. Section 67(2) states: "Where a decision of the Corporation referred to in Subsection (1) of this section is not wholly in favour of the person, the Corporation shall provide to that person, in writing, the reasons for the decision and general information about the rights of review and appeal available under this Act if that general information has not been provided within the previous 6 months." I consider that the letter of 13 December 1994 clearly provided the general information within the appropriate period and that the specific reasons were provided on 22 December 1994. It follows that the Court's decision in Zehnder applies equally in this case. There is absolutely no discretion which enables the respondent or this Court to waive the three month requirement nor do I consider that a request for further information can delay the commencement date of the time requirement. There is no reason why an application for review could not have been filed in February 1995 followed by requests for the additional information. The appeal is dismissed. DATED at WELLINGTON this 25 day of September 1996 A W Middleton District Court Judge de212-95.doc(rd)