Wilkinson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 1 8 /99 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN AMY WILKINSON DCA 190/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE M J BEATTIE ON THE PAPERS The parties to this appeal have requested that the Court issue a decision on the papers. The issue in this appeal is whether the respondent was correct to decline to accept two separate applications for review in respect of decisions of the Corporation, on the grounds that such applications for review were lodged after the expiry of the statutory three month time limit. Background On 21 September 1995 the the appellant, then aged 12 years, was struck in the mouth by a hockey stick during school sports. She suffered certain injuries to her teeth as a 2 consequence of that blow. She was granted cover under the Act in respect of the injuries she received. On 23 December 1995 the Corporation received a request from Janice Sommerville, Orthodontist, for approval to carry out certain orthodontic work on the the appellant's teeth, it being contended that her upper central incisors had been moved as a result of the trauma of the blow. The Corporation sought advice as to whether the treatment sought was to address functional impairment that had resulted from injuries sustained or whether it was required mainly for cosmetic reasons. As a result of enquiries which were made, the Corporation determined that the treatment sought was mainly for cosmetic reasons and not for any functional impairment and therefore it did, by letter dated 26 February 1996, decline the appellant's request for specialist treatment by Dr Sommerville. That letter was sent to the the appellant care of her parents at her home address. There is no suggestion that letter was not received. Included in the letter was advice that if the the appellant was not satisfied with this decision there was a right of review, and the further advice that that request for review must be in writing and must be made no later than three months from the date of the letter. Nothing further occurred in relation to that matter until the Corporation's Customer Services Officer received a phone call from the the appellant's father on 25 November 1996. The memorandum noting that telephone discussion indicated that Mr Wilkinson acknowledged that he had received the letter declining to pay for othodontic treatment but he said that his daughter's teeth had deteriorated over the past six months and that he had decided to go ahead with the treatment that had earlier been proposed and that he wished to review the decision that had been made by the Corporation. The note shows that Mr Wilkinson had explained to him the question of the time limit from the making of the decision and the fact that the time limit had expired. 3 That telephone discussion was followed by a letter dated 3 December 1996 to Mr Wilkinson confirming to him that the question of the orthodontic treatment had been investigated and that the decision to decline to approve treatment had been made and that as more than three months had elapsed since the date of that decision the Corporation could not accept his application for review. That letter declining to accept the request for review did itself have a right of review and it was that right of review which the the appellant did take up. It is that decision which went to a hearing before a Review Officer on 11 March 1998. It seems as though the dental treatment was carried out between 27 November 1996 and May 1997 and in June 1997 Mr Wilkinson submitted accounts for the treatment that had been provided. By letter dated 30 June 1997 the Corporation advised Mr Wilkinson that it could not meet those costs as the treatment had been carried out without its prior approval. This decision was also stated to be a decision in respect of which rights of review arose. On 2 July 1997 Mr Wilkinson wrote to the Corporation noting that the Corporation had accepted the claim for payment in its letter dated 14 May 1997 and he enclosed a copy of that letter. The letter of 14 May 1997 is in fact a letter under a separate reference number advising of the acceptance of a separate claim for cover made in respect of an injury said to have occurred on 6 May 1997. Eventually on 10 February 1998 Mr Wilkinson lodged an application for review in respect of the Corporation's decision of 30 June 1997, and again that application was declined to be considered on the grounds that it was similarly lodged outside the three month time period. Those two applications for review were considered by the Review Officer at the hearing of 11 March 1998 and in his decision he found that the applications for review had been lodged outside the statutory three month time limit and that there was no 4 discretion which would allow the time for bringing those applications to be extended beyond that period. The Corporation's decision to decline to accept the applications for review was confirmed. Decision The relevant statutory provision is section 89(5) of the Act which states that an application for review of a decision of the Corporation is to be made in the prescribed form and may be made within three months after the date on which the notice in writing has been given of the decision in respect of which the review is sought. The two decisions made by the Corporation in respect of which review was sought by the the appellant's father were those of 26 February 1996 and 30 June 1997. In relation to the 26 February 1996 the file discloses that no written request was made until 9 December 1996. Insofar as the 30 June 1997 decision is concerned, an application for review of that decision was made on 10 February 1998. This Court has ruled in a number of previous decisions that whilst the words of section 89(5) use the permissive "may be made within three months", the words nevertheless did not permit of any right or power to grant an extension, and the time limit contained in that provision was to be strictly observed. The provisions of section 89(5) are to be contrasted with the provisions of section 91 of the Act which allows this Court a discretion to grant an extension of time for the filing of an appeal to this Court from a decision of a Review Officer. The fact that there is a specific discretion granted in the wording of section 91 clearly indicates that the complete absence of same in section 89(5) means that no such discretion or power was intended to be given. Accordingly then for the reasons that the applications for review of the decisions sought to be reviewed were lodged well outside the three months statutory time limit, the Corporation was correct to rule that there was no power for it to review those 5 decisions and that therefore they must stand. Accordingly this appeal against those decisions is hereby dismissed. Dated this 29day of January 1999 Seathe M J Beattie DISTRICT COURT JUDGE Wilkinson.doc