Kaulima v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. [2011] NZACC 285 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ANDREW KAULIMA (ACR 230/11) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND on 26 August 2011 APPEARANCES Mr A Kaulima Ms F Becroft, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 22 October 2010, whereby it suspended entitlements to the appellant pursuant to Section 117(3) consequent upon the appellant's failure to sign and return two forms, namely ACC 165 and 167, relating to the giving of consent to the respondent for the correction and disclosure of information. [2] It is the case that the respondent did receive the two forms from the appellant, duly signed on 7 December 2010, and entitlements were reinstated to him from 8 December 2010, but entitlements, including weekly compensation, were not backdated to cover the period of non-compliance. [3] The facts relevant to the issue in this appeal may be stated as follows: 2 The appellant has cover for a back injury suffered by him in an accident in July 2003. The appellant began receiving entitlements, including weekly compensation, as a consequence of that injury. In or about September 2010, the appellant's case manager identified that the consent to disclosure forms had expired and therefore by letter dated 15 September 2010 she wrote to the appellant enclosing two forms, namely ACC 167 - Claimant Authority for the Collection and Disclosure of Information, and ACC 165 - Declaration of Rights and Responsibilities. The letter requested that the appellant sign and return those forms no later than 23 September 2010. As noted from the evidence taken at the Review Hearing, the next event was as follows: On 29 September 2010 a meeting took place, where Mr Kaulima handed in the ACC 165 form and the consent form on which he had made comments pertaining to the case manager breaching part 9 of section 312 of the Act. At the meeting, Mr Kaulima informed the case manager that he would not sign the forms and that he was within his rights to do so. In terms of ACC's records, Mr Kaulima walked out of the meeting without wanting to discuss he issue any further. In a further letter dated 4 October 2010 from the respondent to the appellant the respondent set out what it considered to be the appellant's rights and responsibilities in relation to assisting with the collection of information, and of the signing of the appropriate forms. A lengthy explanation of the requirements and the need for same was provided in that letter. The letter concluded by requesting the appellant to sign and return the forms by 12 October 2010, and that failure to do so could result in his weekly compensation being suspended. On 11 October 2010, the respondent received a letter from the appellant which stated, inter alia, as follows: "I do not appreciate the bullyish stand over tactics that you have adopted in the last letter, threatening to suspend my entitlements if I do not comply with your wishes. I have looked into the Privacy Act 1983, as suggested by you. 3 There are a few things I would like to point out, which I believe you may have overlooked. I have also looked at section 72 of the Act ... I choose the statutory declaration. I looked at the ACC 167 for collection and disclosure of information. Client Declaration. I understand that: Bullet point 3: this consent applies for the whole period during which ACC provides assistance for my claim, unless I negotiate a different arrangement with my ACC Client Service staff member. I do not wish to change or negotiate, a different arrangement. Why all of a sudden ACC are demanding I change the arrangement that ACC and I have, which requires ACC to request off me, in writing, consent for anything they need. This is the way ACC has corresponded in the past and I am happy for this to stay in force. If ACC require consent, I am happy to meet at Henderson ACC office to discuss what, who and why the consent is required for. This will most certainly keep me fully informed of ACC's management of my case. I am happy for another ACC person to attend the meetings, and request that these meetings are recorded, so there is no confusion in who said what." In a letter dated 15 October 2010, from the respondent to the appellant, it again sought to explain the need for the two forms to be signed. At the end of this letter the respondent stated as follows: "Failure to provide this information will result in your weekly compensation being suspended from the 23/10/2010. This support will start again once you have signed the consent, however payments will not be backdated." On 19 October 2010 the respondent received by fax a statutory declaration from the appellant which stated as follows: "I will give consent for ACC to approach me at any time. I will meet with ACC of the Henderson ACC Office. I give consent that ACC can contact me before they require to give information or receive information and discuss with meat a meeting before giving or receiving information about my rehabilitation or anything about me. This consent is so ACC does not ever act with an outside organisation without my prior knowledge or agreement. This statutory declaration should cover section 72(3) and subsection (2) "as a statutory declaration" of "the Act". I believe this should cover the time this file is open." It should be noted that another signed declaration from the appellant making assertions that the appellant's claims manager was harassing him and that he required that she be charged with committing an offence against section 312 of the Act. The respondent's response to those two declarations was a letter to the appellant dated 20 October 2010 which stated as follows: ACC is in receipt of your two statutory declarations dated 18 October 2010. ACC is unable to accept the statutory declaration in lieu of a signed ACC 167 Authorisation for the Collection and Disclosure of Information. I refer you to the letter dated 14 October 1010. Please provide ACC with a signed ACC 167 by 23 October 2010. You have also advised that you wish to make a complaint regarding your case manager under Section 312 of the Accident Compensation Act (2001). You advise you have made a complaint to the Henderson Police. ACC will co-operate with any investigations by the police in regards to this matter. There is no further response ACC can offer with respect to this matter. The respondent did not receive the signed forms and consequently it issued its decision on 22 October 2010 advising that entitlements would be suspended as from 25 October 2010. The letter went on to advise that entitlements would be reinstated from the date that he complied with the request. The appellant sought a review of that decision, that application for review being received on 9 November 2010. . On 8 December 2010, the appellant signed and returned forms ACC 165 and 167, as he had earlier been requested to do and entitlements to him were reinstated as from 8 December 2010. The advice of reinstatement of entitlements was given to the appellant in a letter from the respondent dated 10 December 2010. That letter stated, inter alia, as follows: I refer to my letter dated 22" October 2010; your weekly compensation is to be reinstated following the signed ACC 167 Claimant Authority for the collection and disclosure of information and the ACC 165 Declaration of Rights and Responsibilities forms on the 8/12/2010. As advised on the 22/10/2010 weekly compensation will not be backdated for the period of your non-compliance. A review hearing took place on 14 January 2011 at which the appellant gave evidence of his view of the matter and of his belief that he had complied with the requirement of section 72 of the Act. In a decision dated 14 March 2011 the Reviewer, Mrs E Vogel, determined that the appellant's actions in refusing to sign the two documents was unreasonable and that he had been given a reasonable timeframe in which to comply with the request and that he 5 was fully informed of the consequences of non-compliance. She therefore confirmed the correctness of the respondent's decision to suspend entitlements. [4] In his submissions to the Court the appellant again asserted that he had in fact complied with Section 72 by indicating that he would give his consent on any occasion when the Corporation directly requested him to do so before seeking advice and information from a third party. He indicated that he was concerned that ACC had given out incorrect information on him in the past and he wished to prevent this. In effect he submitted that his actions in withholding of the signing of the forms was not unreasonable. [5] Ms Becroft submitted that the actions of the appellant were unreasonable and she referred to some decisions of this Court where the requirement to sign those forms had been considered reasonable, and that the failure to do so was unreasonable. [6] Counsel submitted that the respondent required the signed consent forms so that it could expeditiously manage the appellant's claim as it was required to do in accordance with the provisions of the Act. [7] Counsel further submitted that the respondent had fully explained the reasons for requiring the forms to be signed and the appellant could be left in no doubt as to what his refusal to do so would involve. DECISION (8] The decision in issue in this appeal was one made by the respondent pursuant to Section 117(3) of the Act where it is stated: The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to comply with any requirement of this Act relating to the claimant's claim. [9] The relevant statutory requirement in this case is section 72(1)(c) which states: A claimant who receives any entitlements must when reasonably required to do so by the Corporation - c) authorise the Corporation to obtain medical and other records that are or may be relevant to the claim. [10] The two documents concerned are documents relating to that statutory requirement, the first being ACC 165 which is entitled Declaration of Rights and 6 Responsibilities and which document sets out the rights and responsibilities and at the foot thereof, where the claimant is to sign it states: "I have read and understood my rights and responsibilities. I acknowledge my responsibilities when I am receiving help from ACC." [11] Form ACC 167 is entitled "Authority for the collection and disclosure of information" and the relevant statements in that document are as follows: I give my consent for information about me to be collected, used and disclosed to: . assess my entitlement to compensation, rehabilitation and medical treatment . help with the evaluation of ACC's services and performance help with research into injury prevention and effective rehabilitation I understand that: this consent applies to all aspects of my claim, and includes external agencies and service providers such as general practitioners, specialists, employers etc from whom ACC asks for information I have the right to see and correct any information ACC holds about me this consent applies for the whole period during which ACC provides assistance for my claim, unless I negotiate a different arrangement with my ACC Client Service staff member The information collected will only be used or disclosed in relation to the purposes of the Accident Compensation Act 2001. [12] It is the case that all claimants who have entitlements consequent upon a covered personal injury, and particularly in situations where one of those entitlements is weekly compensation, is required to sign the two forms concerned, and it is clearly identified that the respondent's ability to deal with and progress claims or entitlements which require the input of third parties would be severely handicapped if those forms were not completed. I consider that the proposal asserted by the appellant in his letter of 11 October 2010 set out above to not be acceptable from an administrative perspective and there is simply no basis for him to be put in some special category. [13] In this case, I find that the appellant was given more than sufficient time to sign and return the forms and similarly he was given a full explanation of the need for same and his own assertions were identified as not being sufficient and it should have been clear to him that his continued receipt of entitlements was dependent upon him signing the forms which enabled the respondent to deal with the statutory requirements relating to his claim that he was no doubt seeking for it to pursue. [14] In terms of the statutory provision, I find that it was unreasonable for the appellant to refuse to sign and return the forms and this situation has been identified in previous decisions of this Court, one of which was the appeal of Dewe (Decision 290/06) and I endorse the comments made by Judge Barber in that case as being wholly applicable to this appellant's stand in the present case. In that decision His Honour stated as follows: [38] For the above reasons, I find that ACC/AON's request to the appellant to provide authorisation for it to obtain medical and other records was 'reasonable', and that the appellant's refusal to provide such authority was 'unreasonable'. Accordingly, this appeal fails. [39] Quite frankly, it seems a waste of taxpayer's money that these proceedings have been brought about by unhelpful stubbornness on the part of the appellant. It was perfectly reasonable that he sign the type of consent form tendered to him by AON on behalf of ACC. Yet the parties, the Reviewer, and this Court have been put to much time and effort over a four week entitlement to weekly compensation back in 2001 when the impasse could easily have been resolved by the appellant. While it is most important that claimants' rights be thoroughly respected, basic courtesy and common sense are required from claimants. The Justice system should not be required to deal with appeals arising out of a contrary approach from appellants." [15] For the foregoing reasons, therefore, I find that the respondent's decision to suspend entitlements was a decision it was entitled to make in terms of section 117(3) of the Act and accordingly this appeal is dismissed. DATED this 4th day of October 2011 M J Beattie District Court Judge