Watene v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 21 / 95 AT WELLINGTON DCA No. 230 / 94 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act 49-94- 1654 BETWEEN B.A. WATENE APPELLANT AND THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland on: 24 February 1995 The appellant in person N. Morrison as counsel for the respondent Date of Decision: 7 March 1995 RESERVED DECISION OF JUDGE J.W. IMRIE This appeal is to be transferred to the Appeal Authority. 2. When this appeal was first called on 24 February, Mr Watene did not appear. It proved that he was waiting in Hearing Room 8.4 as advised in the notice from the Court, but the appeal was heard in Hearing Room 8.3. In Mr Watene's absence, Mr Morrison produced a synopsis in writing of his submissions on behalf of the Corporation. I then raised with Mr Morrison whether this was an appeal that should be heard by the Appeal Authority under the 1982 Act, or by me under the 1992 Act. The appeal raises two questions:- (1) Whether Mr Watene is entitled to an additional sum under s.79 of the 1982 Act. (2) Whether the Corporation should pay for Mr Watene to undergo a CT scan. Section 135 deals with the relationship between the 1992 Act and the 1972 and 1982 Acts. Subsection (3) reads:- "Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the first day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the first day of October 1992, shall have the acceptability of the claim determined under the Accident Compensation Act 1982 as if it had not been repealed." 3. In the case of King v ACC [1994] NZAR 159, 169 the High Court said : - "Section 135(3) of the 1992 Act applies to claims lodged before 1 October 1992 (as was the plaintiff's claim for a s 60 assessment). Despite the contentions of the respondent to the contrary, it is my view that the word 'claim' must apply to the whole range of claims possible under the 1982 Act. The words acceptability of the claim' are wide and there is no warrant for restricting their meaning to the initial decision as to whether a claimant has or has not suffered personal injury by accident and thereby becomes qualified to make one or more of a variety of claims available under the Act. I consider that s 135(3), given a full, large and liberal interpretation is sufficiently broad to include an injured person's entitlement to have a claim for a s 60 assessment considered. This accords with s 138(1) of the 1992 Act which allows compensation under the 1982 Act to which a person would have been entitled, to be paid as if calculated under that Act provided an assessment has been completed before 1 October 1992 or, as in the present case, an application for review under Part IX of the 1982 Act was lodged prior to 1 October 1982 (s 138(1A))." On the basis that the appellant's claim for cover in effect included a claim for a CT scan, if under s. 135(3) the 1982 Act remains in force, the powers of the Corporation, the Review Officer, and the Appeal Authority also remain in force. Mr Morrison agreed that the appellant's entitlement to an increase in the lump sum payment should be decided by the Appeal Authority. After discussion, he did not oppose the question relating to the CT scan also being dealt with by the Appeal Authority. 4. Because there is no record of the review hearing, evidence will have to be heard at the appeal hearing. It appears that Mr Watene could have been given more assistance by the Review Officer in covering in his evidence all the relevant points. The Corporation could consider asking the Review Officers to assist a claimant to cover in evidence all relevant matters at the review hearing if the claimant is not legally represented and does not have an advocate. Otherwise the result may be that evidence will have to be heard at the appeal hearing when it could best have been heard at the review hearing and taken into account in the Review Officer's decision. Whether or not the conditions for a CT scan set out in the Schedule to the Radiologists Costs Regulations 1990 are met, is a question for the Appeal Authority and not for me. However, it may be that too high a standard should not be set for the conditions for approval of the scan. The conditions that the scan is likely to be followed by a request for treatment and that approval for that treatment would be likely to be given are best decided after the resultsof the CT scan are considered. The appeal was called again at 11.20 a.m. when Mr Watene was present. I explained to him that I had discussed the claim with Mr Morrison. Mr Morrison advised that he had discussed that with Mr Watene before I entered the Court. Mr Watene advised that no tape recording was made of the hearing. The machine was not working. 5 . I suggested to Mr Watene that he obtain legal advice. He said he has a solicitor and he will consult him. I advised him of his entitlement to apply to legal aid. Mr Watene mentioned that he was reluctant to undergo another operation because of what happened last time, and because he is not sure about the success rate of the operation. I told him that those were matters on which he should take medical advice. It may assist if I record three other points made by Mr Watene:- 1. In his decision the Review Officer said that the plastic surgeon, Mr Gilbert, stated in his report that Mr Watene did not seem concerned enough about the scars to want to undertake surgery to improve their appearance. Mr Watene has indicated that Mr Gilbert had drawn the incorrect inference from what he said. Mr Watene said that he explained at the time to Mr Gilbert that he nearly died twice on the operating table immediately after the accident, and for that reason he wanted to think carefully about undergoing any further operation. 2. The Review Officer said that Dr McAuley had noted that Mr Watene had recently begun to develop dizziness. Mr Watene has indicated that the dizziness had developed "from day one" 3. The Review Officer said that Mr Watene did not seek to place any emphasis on the aspect of disfigurement. Mr Watene has indicated that that was not mentioned at the review hearing. 6. Mr Watene agreed that the appeal should be transferred to the Appeal Authority for hearing and accordingly it is. A copy of this decision is to be sent to Mr Watene, and to the Corporation for the attention of Mr Morrison, and to Mr Watene's solicitor, Mr Chris Bayliss. .. .....". (J. W. Imrie DCJ)