Hanley v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT DCA No. 124/95 HELD AT AUCKLAND Decision 155/95 UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 AND 45 / 93 / 0447 . IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN A.R. HANLEY APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland: 17 October 1995 Date of Decision: 22 December 1945 The appellant in person J.W. Saxton as Counsel for the respondent RESERVED DECISION OF JUDGE J.W. IMRIE I have decided that the appeal fails. Introduction: The issue in this appeal is whether the appellant is entitled pursuant to s. 147 of the 1992 Act to lump sum compensation for an injury he suffered on 2 September 1991. 2. On 2 September 1991, the appellant was working for the New Zealand Air Force. He was on a training flight when the plane crashed, and he suffered injuries including compound fractures to both ankles. The Corporation accepted his claim and made payments of earnings related compensation to his employer, and it also paid for some treatment expenses. There is a C15 further medical certificate dated 17 January 1992 on the file. It refers to the appellant's injuries from the crash and states:- "Please assess re permanent disability relating to above." The Corporation received that certificate on 19 April 1993 at its Riccarton office. It was accompanied by a note dated 19 April 1993 from Medical Flight RNZAF Base Wigram and signed by L.E. Moyes, and it reads:- "Susan, As discussed on phone this morning attached is copy of C15 for Allister Hanley. Could you please contact me re permanent disability claim when you have sorted it out. Many thanks" There is a note dated 12 May 1993 on the Corporation's file. It refers to a telephone conversation with a medical officer from the Wigram Air Force Base. That medical officer advised that she thought that the C15 had been sent to the Corporation at the time it was issued in January 1992, and was enquiring about progress. On 18 May 1993, the Corporation advised the appellant that his claim had been declined as he had not made an application for lump sum 3. compensation. The appellant applied for a review of that decision on the ground that he had applied for lump sum compensation on 17 January 1992. The Corporation considered this application for review, including the appellant's claim that the C15 medical certificate qualified as an application for lump sum compensation and was sent in at the time it was issued in January 1992. The Corporation determined that as the appellant had not elected lump sum compensation prior to 1 April 1993 as required under s. 147 he could not receive lump sum compensation even if the medical certificate had been sent in January 1992. The review was heard on 14 July 1993. In his decision dated 6 August 1993, the Review Officer determined that the appellant had not elected in writing to receive lump sum compensation rather than an independent allowance as required by s. 147. The appellant received the review decision on 10 August 1993, but did not file a notice of appeal until 22 May 1995. The appeal was therefore outside the time limit provided in s.91(3). However, the Corporation does not object to the failure to appeal within the required time limit. Hearing 17 October 1995: At the hearing Mr Hanley submitted a number of documents and read a statement setting out particulars of the accident and his injuries and referring to the medical reports. He explained that initially the fracture to his right ankle was overlooked because of the severity of the injuries to his left ankle. He said that in January 1992, he spoke to the doctor at the Base advising the doctor that he wished to apply for lump sum compensation. He was told by the doctor 4. to fill out the C15 form, which he was told was an election for a lump sum. He continued with his treatment and he was able to return to the course in May 1992 and completed it in January 1993. He enquired about his lump sum, and he received the letter dated 18 May 1993 from the Corporation refusing a lump sum. In his submissions Mr Hanley also referred to his application for review, the review decision and his appeal. For the Corporation, Ms Saxton presented submissions in writing. Those submissions set out the background to the appeal, refer to the provisions of s. 147 and conclude that the appeal must fail on the basis that:- (a) No written application for lump sum compensation was received by the Corporation before 1 April 1993, and (b) No written election was received by the Corporation by 31 March 1993. Accordingly, pursuant to s. 147(3) the appellant is deemed to have elected to receive an independence allowance. Ms Saxton also referred to the authorities including Brown (Decision 23/95), McNichol (81/95), Webster (22/94), and Shanly (40/94). Mr Hanley said that he had had a discussion with workmates about claiming a lump sum, and he told the doctor that he wanted to elect for a lump sum, and the C15 form was filled out and he signed it. He said that it was given to Ali Moyes. He said that she told him that she sent it to the Riccarton Branch of the Corporation. He did not call her to give evidence at the review 5. hearing, nor present a statement from her, but he told the Review Officer that the form had been sent to the Corporation. He agreed that although the C15 form was intended to be submitted as a request for a lump sum, it was not an election to receive a lump sum rather than an independence allowance. He said that once the assessment had been made he would have made his election before 1 April 1993. Leave was reserved to Mr Hanley to file and serve within 21 days a statement from Ms Moyes relating to the sending of the C15 form, and the Corporation was given ten days after service of that statement on it to file and serve any further submissions it wished to make on that point. Mr Hanley has filed a statement dated 20 October 1995 from Ms Moyes which reads:- "In my capacity as the receptionist at the Base Hospital, RNZAF Base Wigram in 1992, I was given a completed C15, filled out by Dr R Mills on the 17th Jan 92 which I then submitted the original to ACC Branch Office, Riccarton and filed the copy on Allister's medical file." By letter dated 13 November 1995, Ms Saxton advised that the Corporation did not wish to make any further submissions but submitted that the appeal must fail because the appellant had failed to make an election not later than 31 March 1993. 6. Consideration and Decision: Section 147(2) provides for the purposes of this case that Mr Hanley was entitled to elect in writing, not later than the 31st day of March 1993, to receive either his ... entitlement under ... s.78 or s.79 of the Accident Compensation Act 1982, or an independence allowance under and subject to the conditions of this Act, but not both. " Section 147(3) provides for the purposes of this case that if no election is made under s. 147(2) the claimant shall be deemed to have elected to receive an independence allowance under and subject to the conditions of s.54 of this Act as if the personal injury by accident was personal injury that had been suffered on the 1st day of July 1992." Whether the C15 form was sent to the Corporation is a side issue. The appeal must fail because Mr Hanley did not elect in writing not later than 31 March 1993 to receive lump sum compensation under the 1982 Act. Section 147(3) provides that Mr Hanley is deemed to have elected to receive an independence allowance in place of lump sum compensation because he did not elect in writing not later than 31 March 1993 to receive his entitlement to lump sum compensation. I do not overlook Mr Hanley's advice that if the Corporation had dealt with the application in the C15 form for assessment of lump sum compensation, he would have elected before 31 March 1993 to receive that sum. However, it has been said in a number of cases that under the Act the responsibility for making an election rests entirely with the claimant and that 7. whatever the reason for a claimant's failure to make an election, the Act does not give the Corporation a discretion to pay lump sum compensation. Further Matters: I allowed Mr Hanley to submit a statement from Ms Moyes, not because it would affect the outcome of the appeal, but because it may demonstrate that there is a procedural problem which should be addressed by the Corporation. It appears that the Corporation has held its file in three offices. In September 1991, the claim was lodged at the Corporation's office in Papanui. That may have been because that office was the one nearest to the Christchurch Hospital where Mr Hanley was a patient. It appears that the file was transferred to the Takapuna office towards the end of October 1991. The reason for that was that Mr Hanley was sent home to Auckland on sick leave for two and a half months. The copy of the C15 form was received by the Corporation at its Riccarton office on 19 April 1993, and later that month the file was transferred to Riccarton. The C15 form had the correct claim number on it i.e. 86/92/538206. It may be that the C15 form was not acted upon by the Corporation because at the time it was originally sent to the office at Riccarton, the file was in Takapuna, and the C15 form never reached the file. Conclusion: The appeal fails. District Court Judge