Badman v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 19/ /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN BARRY KAVANAGH BADMAN of Invercargill Appellant (Appeal No. DCA 144/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 22nd day of June 1999 APPEARANCE/COUNSEL D J C Russ for appellant P A McBride for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON This appeal arises out of a review decision issued on 12 March 1998 in which the Review Officer revoked a decision of the respondent issued on 7 July 1997 which purported to cancel the appellant's entitlements pursuant to section 7 of the Act. The appellant suffered a low back strain while carrying out fencing work on his farm in April 1992. As a result he was granted cover under the Act and received various entitlements. His Orthopaedic Specialist, M R Fosbender, noted in November 1995 2 that "This man's capacity for work is limited." He considered that he would be able to do work which was of a sedentary nature which avoided lifting and bending or the vibration of machinery. In carrying out its requirements to assist with the appellant's rehabilitation and to enable it to consider an Individual Rehabilitation Programme, the respondent requested the appellant to attend a functional capacity consultant with a view to an assessment being made. Thereafter, followed a series of correspondence between the appellant's solicitor and the respondent. The appellant was advised through his Solicitors that pursuant to section 64 of the act he was required to attend the functional capacity assessment. The appellant for his own reasons did not attend the assessment. On 12 June 1997 the respondent wrote to the appellant through his Solicitors advising that as a result of his failure to attend the appointment for his functional capacity evaluation on 12 June 1997, his entitlements under the Act would be suspended until the complied with the request to undertake and complete the evaluation. The letter also advised the appellant that his failure to make a further appointment by 3 July 1997 would be seen by the respondent to be an unwillingness to undergo the evaluation which could result in his entitlements being cancelled. As the appellant did not attend for the evaluation by 3 July 1997, the respondent wrote to the appellant on 7 July 1997 giving notice that his entitlement for weekly compensation had been cancelled. The appellant applied for a review of that decision. While submissions were made at the review hearing that the actions of the appellant in failing to attend for the evaluation were reasonable, it was submitted that the appellant was then prepared to undergo the assessment without any conditions. The Review Officer concluded on the basis of the decisions in Hyde (14/98) and Fletcher (18/98) and other similar decisions that while the appellant was medically certified as having a partial incapacity, he did not lose his entitlements because in those circumstances section 73(2) permitted the respondent only to suspend payments pending the compliance with its requirements. The Review Officer then concluded on the basis of the cases to which I have referred that the respondent's only power under section 73(2) was to suspend payments pending the appellant's compliance with the reasonable request of the respondent to undertake the evaluation. On that basis the Review Officer revoked the respondent's decision of 7 July 1997 purporting to cancel entitlements in terms of section 73(1) of the Act. When the appeal was called, Mr McBride made the initial submission that the Court had no jurisdiction to consider this appeal because the submissions of the appellant related to a challenge to the decision of 12 June 1997 and not the decision of 7 July 1997 which was the subject of the review hearing. At the time I indicated to Mr Russ that that submission had merit. Mr Russ submitted that the factual situation was so closely associated with the decisions of 12 June and 7 July 1997 that it was reasonable for the Court to take all the issues into account and make a decision. This was particularly pertinent, in his submission, because all the appellant now sought was reinstatement of his entitlements between 10 June 1997 and 6 December 1997 when he agreed to undertake the assessment and the respondent reinstated his entitlements. 3 While the factual background is certainly intertwined, the respondent's letter of 12 June 1997 was clearly a decision to suspend payments and could have been the subject of a review application. As the appellant failed to comply with what I consider was a reasonable request, the matter proceeded further until the letter of 7 July 1997 which then became the subject of a review hearing at which the appellant was successful. That matter is therefore not now in issue. I agree with Mr Mcbride's submission that while the Review Officer made the decision that the respondent's decision to cancel compensation was wrong she made no decision as to the dates of suspension which was a subject she referred back to the respondent for further consideration. It is that issue which the appellant now submits the Court should resolve. I do not consider I have jurisdiction to do so. The respondent must first make a decision on that as directed by the Review Officer. That decision, when made, will itself carry the usual rights of review and appeal I consider that as the decision of 12 June 1997 has not been challenged by way of review, I have no jurisdiction to consider it on the basis of a purported appeal against the Review Officer's decision in relation to the respondent's decision of 7 July 1997. The appeal is dismissed. DATED at WELLINGTON this | > day of July 1999 queunadubs A W Middleton District Court Judge dca144-998.doc (nr)