Buxton v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. SI /2001 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to section 152 of the Act BETWEEN ANN BUXTON of Waiheke Island Appellant (Appeal No. Al 299/2000) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on the 29th day of January 2001 APPEARANCES/COUNSEL J M Miller for appellant B A Corkill for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON [1] The issue in this appeal is whether the respondent was correct when it advised the appellant that she had received an overpayment of $5,265.64 in respect of her independence allowance. [2] The background to the appeal is that the appellant suffered multiple injuries in a motor vehicle accident on 3 July 1976, as a result of which she was granted cover under the Accident Compensation Act 1972. [3] On 22 March 1999 the appellant applied for an independence allowance in respect of the injuries she sustained in the 1976 accident. [4] On 14 May 1999 Dr E Thornton, a duly authorised and approved Assessor, assessed that the appellant had a 20% whole person impairment for the injury she had sustained which included nervous disorder and thyrotoxicosis. 2 [5] Dr Thornton considered that the appellant had not been given cover in respect of the nervous disorder nor did she have cover for thyrotoxicosis and there was no real evidence that this had been caused by the accident. His conclusion was therefore that at that time her whole person impairment as a result of the injuries sustained in the accident was 16%. [6] In August 1999 Dr J Reeves, a Psychiatrist, concluded that the appellant was suffering a mental injury as a result of the "seriousness of the accident and the fact that her young daughter was also injured." [7] On 14 July 1999 the respondent issued a decision declining cover for the mental injury because it considered that that injury did not arise solely or substantially from the appellant's physical injuries. That decision was the subject of a review as a result of which it was found that the statute governing the appellant's appeal was the Accident Compensation Act 1972. It permitted an assessment for an independence allowance in relation to mental injury. The Reviewer quashed the respondent's decision and referred the matter back to the respondent for an assessment of the appellant's whole person impairment taking into account the 16% impairment already assessed and in addition taking into account the mental injury. In that decision the Reviewer noted that the respondent had not provided evidence as to the payment of previous lump sum awards as the appellant had stated that she was unaware of having received any such payments. The Reviewer then concluded that section 442 of the Accident Insurance Act 1998 did not apply. [8] The respondent subsequently produced a computer printout indicating that the appellant had received a previous lump sum payment. [9] As a result, the respondent issued a decision letter on 4 February 2000, reassessing the independence allowance, having regard to the fact that the appellant had received a lump sum award based on a 13% disability with the result that an overpayment had arisen. [10] In the decision of 31 May 2000, the Reviewer concluded that there was sufficient evidence to satisfy him that the appellant had received a lump sum award and that the respondent's decision should be confirmed. It is against that decision which the appellant now appeals. [11] Mr Miller submitted that as the application for an independence allowance was made on 2 March 1999, the Accident Rehabilitation and Compensation Insurance Act 1992 was the applicable Act. He submitted that on the basis of the wording in section 54(7)(a) of the 1992 Act, the appellant was entitled to payment of the independence allowance from July 1976, being the date upon which her claim for cover was lodged. [12] Mr Miller submitted that as the 1992 Act was repealed by the Accident Insurance Act 1998, the transitional provisions of the latter Act had to be applied. He submitted that on that basis section 441(1)(b) appeared to apply to the appellant on the grounds that as she was not receiving independence allowance before 1 July 1999, she was entitled to one. He submitted further that pursuant to section 441(2) she was entitled to receive an independence allowance on or after 1 July 1999 under Part 4 of Schedule 1 as modified by section 441(3). He submitted that the modifications in section 441(3) did not 3 affect her entitlement to have the independence allowance backdated to July 1976. [13] Mr Miller submitted that section 441(2) does not address the issue of the appellant's existing right to have the independence allowance backdated to July 1976 as it only speaks of "continuing" the independence allowance after 1 July 1999. He submitted that if it was argued that section 441(2) makes Part 4 of Schedule 1 applicable, then that brings in clause 63. Mr Miller submitted that clauses 63(a) and 63(b) contradict each other. He submitted that while clause 63(a) only states that the insurer is not liable to pay an independence allowance, it does not categorically state that it cannot be paid. He submitted that clause 63(b) confirms the appellant's existing right to have the independence allowance backdated to the lodging of the claim of cover in July 1976. His submission was that the transitional provisions are not sufficiently clear to take away the appellant's existing right to have the independence allowance backdated to July 1976. [14] Mr Miller submitted that the appellant's evidence at the review hearings was that she had not received any lump sum awards. He submitted that the computer printout produced by the respondent which showed a payment of $1, 120 with the code number 3600 which it was suggested equated to an award under section 120 of the 172 Act was not evidence that the payments were "received" by the appellant as required by section 442. [15] Mr Corkill submitted that pursuant to section 3 of the Evidence Amendment Act (No. 2) 1980, the computer printout produced to the Reviewer was clearly a business record which the Court is entitled to accept as disclosing that a lump sum award of $1,120 had been paid under the provisions of the 1972 Act. Mr Corkill submitted that the computer printout referred to "Ms A Brown" with a date of birth of 19 November 1948 who had been involved in an accident on 3 July 1976. He submitted that as it has been accepted by the appellant that her previous name was "Brown" and that she has the same date of birth and suffered an accident on the same date, then the payment was made to her for the injuries sustained in that accident. [16] Mr Corkill submitted further that while the appellant has submitted to the Reviewer that there could have been a mistake because her daughter had also received a payment arising out of the same vehicle accident an investigation of that issue did demonstrate that the daughter had received lump sum awards in a claim which was given a number sequential to the same reference allocated to Ms A Brown. Mr Corkill submitted that it was therefore open to the Reviewer on that evidence to accept that the payments to the daughter had not been made to her in error. [17] Mr Corkill submitted that the issue of credibility was for the Reviewer to assess and that the evidence was sufficiently persuasive for him to conclude that the appellant had been paid the lump sum award. [18] Mr Corkill submitted that the outcome of the case depends on the transitional provisions of the 1998 Act. He submitted that the appellant's submission that she was entitled to receive the independence allowance on or after 1 July 1999 by virtue of section 441(2) had to be considered together with the requirements 4 of section 442(2)(b). He submitted that the criteria provided by that reference is crucial to this case. [19] Mr Corkill further submitted that the reference in section 441(3)(a) to the lodging of a claim for injuries suffered before 1 July 1999 emphasises the transitional nature of the provisions. (20] The law applicant to this appeal is: [a] Section 441 of the Accident Insurance Act 1998 which provides: 441. Independence allowance---(1) Subsection (2) applies to- (a) A person to whom section 27(1) of the Accident Rehabilitation and Compensation Insurance Amendment Act (No 2) 1996 applies and who was not reassessed under section 54A of the Accident Rehabilitation and Compensation Insurance Act 1992 before 1 July 1999: (b) A person who, immediately before 1 July 1999, was receiving or was entitled to receive an independence allowance under section 54 of the Accident Rehabilitation and Compensation Insurance Act 1992: (c) A person who suffered a personal injury before 1 July 1999 and did not [apply for an independence allowance before 1 July 1999]. (2) Such a person is entitled to receive an independence allowance on and after 1 July 1999 under Part 4 of Schedule 1, as modified [by- (a) Subsection (3); and (b ) Section 442(2)(a) and (b), if the person is a person to whom section 442(2) applies.] (3) The modifications [made by this subsection] are as follows: (a) Such a person may not lodge a claim for an independence allowance under Part 4 of Schedule 1 for any injuries suffered before 1 July 1999: (b) A person described in subsection (1)(a) receives the rate of independence allowance payable on 30 June 1997 as adjusted by section 71 of the Accident Rehabilitation and Compensation Insurance Act 1992 or section 460: (c) Any assessment under clause 60 of Schedule 1, or reassessment under clause 61 of Schedule 1, must be done on the basis of whole-person impairment for the combined effect of all his or her personal injuries covered by the former Acts, and only 1 independence allowance is payable for all those injuries: (d) As soon as practicable after 1 July 1999 the manager must require a person described in subsection 5 (1)(a) to be reassessed in accordance with paragraph (c). [b] Section 442 which provides: 442. Entitlement to independence allowance of persons who received lump sums under former Acts and suffer further impairment---(1) Subsection (2) applies to a person who received a payment for personal injury by accident under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982.] (2) Such a person may apply [under section 441] for an independence allowance under Part 4 of Schedule 1. That Part applies subject to the following modifications: (a) The independence allowance must be calculated by deducting, from any whole-person impairment assessed under [clause 60 of Schedule 1, or reassessed under clause 61 of Schedule 1,] any percentage permanent loss or impairment of bodily function for which any payment was made under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982: (b) An independence allowance payable as the result of an assessment under clause 60 of Schedule 1 is payable from the date of the application for it. [c] Clauses 58, 60 and 61 of Schedule 1 of the Act which provides: 58. Independence allowance---(1) The insurer is liable to pay the insured an independence allowance at the rate set in clause 62, if- (a) The insured has suffered personal injury for which he or she has cover; and (b) An assessment carried out under clause 60 establishes that that personal injury, for which the insured lodged the claim for cover, has resulted in a degree of whole-person impairment of 10% or more,- but this subclause is subject to subclause (2). 2) The insurer is not liable to pay the insured any amount of independence allowance in excess of 100% whole-person impairment for mental injuries- (a) That he or she has cover for under section 40; but (b) That together are over 100% whole-person impairment. 60. Assessment of entitlement to independence allowance---(1) The insurer must appoint, and pay, as many assessors as it considers necessary to do assessments under this clause (2) An assessor assesses the insured's percentage of whole-person impairment arising from each claim that is referred to the assessor for assessment. 6 (3) An assessor must do the assessment after the insurer receives a certificate under clause 59(1). (4) In doing an assessment under this clause, an assessor must- (a) Use the American Medical Association Guides to the Evaluation of Permanent Impairment (Fourth Edition) (subject to any regulations made under section 403(2)); and (b) Exclude from the assessment any impairment that does not result from the personal injury for which the insured lodged the claim for cover. (5) The insurer must notify the insured of- (a) The assessed degree of whole-person impairment; and b) The rate of independence allowance payable, if any. 6) The insurer must pay the reasonable costs associated with the assessment. 61. Reassessment of entitlement to independence allowance---(1) Clauses 58 to 60 apply to reassessments under this clause 2) The insurer must arrange for an assessor to reassess an insured if- (a) The insured was assessed after the insurer received a certificate under clause 59(1)(b) and before the insurer received a certificate under clause 59(1)(a); and (b) The insurer then receives a certificate under clause 59(1)(a) A reassessment under this subclause is not a reassessment for the purposes of subclause (4) or subclause (6) (3) The insurer must arrange for an assessor to reassess an insured who produces to the insurer a certificate from a registered medical practitioner indicating that the insured's impairment may have increased since the date of assessment, but this subclause is subject to subclause (4). (4) An insured is not entitled to more than 1 reassessment under subclause (3) in any 12 month period. 5) The insurer must arrange for an assessor to reassess an insured if the insurer has a certificate from a registered medical practitioner indicating that the insured's impairment may have decreased since the date of assessment, but this subclause is subject to subclause (6). 6) An insured is not required to undergo more than 1 reassessment under subclause (5) in any 5 year period. [21] I accept Mr Corkill's submission that the computer printout provided by the respondent as to the payment made under the 1972 Act is evidence of a business record which it is open to the Court to accept for the purposes of this appeal. The respondent made several efforts to trace the author of the document without success. However, it is clear that the document was produced at some time not long after 1976 since when all the respondent's other records have been destroyed. 7 [22] While the appellant states that she did not receive payments, I agree with the finding of the Reviewer that it was in fact made and that it is therefore encumbent upon the appellant to satisfy the Court that she did not receive it. I consider that on that issue, the finding of the Reviewer must be accepted. [23] The appellant applied for the independence allowance on 2 March 1999 at which time the transitional provisions of sections 441 and 442 became applicable. The appellant was a person who had suffered injuries prior to 1 July 1999 but had not applied for an independence allowance before 1 July 1999. She therefore became entitled to make an application subject to the provisions of clauses 58, 60 and 61 of Schedule 1 of the 1998 Act. Under the assessment provisions the assessment must be made by a duly appointed assessor and from that result must be deducted the degree of impairment for which the appellant has already received a lump sum award under previous Acts. [24] It was clear that the provision of independence allowances did not come into being until the advent of the 1992 Act so that I do not accept Mr Miller's submission that pursuant to section 54 of the 1992 Act the appellant is entitled to a backdated payment from July 1976 when she lodged her claim for cover. Section 442(2)(b) specifically provides that the independence allowance "is payable from the date of the application for it." It follows therefore that the independence allowance is payable from 22 March 1999, being the date upon which the appellant made the application for it. [25] In the result, therefore, I conclude that the decision of the respondent confirmed by the Reviewer was correct. [26] The appeal is dismissed. DATED at WELLINGTON this 16 th day of March 2001 bemunadubin A W Middleton District Court Judge ai299-2000.doc (nr)