Arts v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 75 /96 HELD AT HAMILTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND $9195/6024 IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN ANDREW ARTS Appellant (Appeal No. DCA 12/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 22nd day of August 1996 APPEARANCES Appellant in person P A McBride for respondent DECISION OF JUDGE D A ONGLEY This appeal concerned a failure by the appellant to appreciate his right to apply for home help and attendant care benefits. The appellant was injured in a motor accident on 14th June 1994. A claim for cover was lodged immediately and the Corporation advised the appellant of its acceptance of the claim and his possible entitlement to compensation for matters including attendant care. The appellant did not apply for attendant care until June 1995, exactly one year after the accident. He applied for attendant care to be back-dated but the application was declined. From June 1995 the Corporation granted an entitlement of $160 per week for attendant care, but assessed a nil entitlement for home help. The review officer dealt with the claim correctly. He referred to Regulations 4 and 8 of the Attendant Care Regulations 1993 which are part of the Social Rehabilitation provisions under s 26 of the Accident Rehabilitation and Compensation Insurance Act 1992. Regulation 8 states that payment shall become due and payable from the date of a written application or the - 2 - date of discharge from a hospital following initial treatment for personal injury, whichever is the later. The review officer considered that the appellant would have been entitled to attendant care but could not be entitled to any back-dated benefit because of the wording of the regulations. The review officer had no authority to reverse the Corporation's decision not to consider back-dated compensation for attendant care. On appeal the Court has no power to do so within the scope of the Act and the Regulations. The facts of this case are disturbing. For several weeks after the accident the appellant was in traction and treated with morphine. His wife was obliged to attend to his electrical contracting business as well as managing the home and visiting the appellant in hospital. The advice from the Corporation accepting the claim was on a routine form with a paragraph referring to benefits including attendant care. The appellant and his wife had no idea that the consequences of the accident would be as severe as they eventually turned out. Mrs Arts could hardly have been expected, in the circumstances, to read and comprehend details of every document she received while her husband was totally incapacitated for a period of about 7 weeks after the accident. The Corporation's letter was placed on a file with other material and she did not refer to it again. Neither the appellant nor his wife became aware that there was an attendant care benefit available. The Corporation provided no further information of that kind and there was no active intervention by a case manager in order to ensure that the appellant was aware of available benefits. The Corporation had no statutory duty to inform claimants of available benefits. It has been observed before in cases such as Hammersley 41/96, that the obligation rests on the claimant and his advisors to complete claim forms. It is conceivable however, that circumstances may arise where the Corporation has a common law duty of care to a claimant whom it knows to be entitled to benefits and in need of benefits, and whom it knows to be failing to claim those benefits, and therefore probably to be unaware of an entitlement. Such a duty of care could arise once Corporation staff have had such other communications with the claimant through, for example, assessment of earnings-related compensation, to know that a situation exists where an attendant care claim should be expected, and indeed should be encouraged. The proposition of such a duty of care may be based on the Corporation's obligation under s 20(3) of the Act to appoint case managers, and it may be fortified by the fact that the Corporation has considerably improved its case management techniques in order to provide that kind of advice. A duty of care of that kind may have existed in this case and it may have been breached by the Corporation failing to inform the appellant in an adequate way having regard to the distractions and stresses to which the appellant and his family were inevitably subject. There may be some notion of contributory negligence through failure to scrutinise carefully all communications from the Corporation, but bearing in mind circumstances in which that was quite likely to occur, even given the best degree of care that the appellant and his wife were able to exercise in the circumstances. I think that this is a case where there may be justification for the Corporation to consider a wrongful action claim, even although it may not meet usual criteria. A wrongful action claim is not the province of the Court on appeal, but it would be quite unfair to dismiss this appeal without commenting on those matters where the appellant - 3 - is unrepresented and has been unable to advance a wrongful action claim despite the help from his present case manager for which he has expressed his gratitude. This appeal is dismissed. There should be a small award of costs to the unsuccessful appellant. He has attended with his wife and through administrative reasons has had to wait at the Court for a good part of the day. That is not through the fault of the Corporation, but as there is merit in general aspects of the appellant's claim he will have an order for costs in the sum of $200. DATED at WELLINGTON this 12th day of September 1996 1.4 D A Ongley District Court Judge