Tokona v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. 182/98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN BARRY TOKONA DCA 42/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 4th day of August 1998 APPEARANCES: Mr Q Mines advocate for appellant Mr R B Cash counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the letter of 10 July 1997 from the respondent to the appellant's advocate was a decision letter and thereby attracted a right of review pursuant to s.89(1) of the Act. N BACKGROUND The appellant has had 3 claims for personal injury by accident accepted by the respondent. These claims relate to injuries to his right leg and ankle in 1974, and injuries to his back in 1976 and 1980. In a 7 page letter dated 17 August 1995 Mr Mines, acting on behalf of the appellant, requested the Corporation to give consideration to accepting that the appellant had an entitlement to weekly compensation relating back to the date of his first injury in 1974. It was contended that that injury and the two other injuries suffered by the appellant subsequently prevented him from resuming his pre-accident employment as a forestry worker and that he was so entitled to compensation subject to consideration being given to any earnings made by the appellant or social welfare benefits received during the years down to the present time. Medical reports were enclosed with the letter and it was contended that a clear case of entitlement was made out. On 19 December 1995 the Corporation advised the appellant that his application for backdated compensation had been declined because there was inadequate information on which to determine entitlements. It was stated that the information was inadequate both from a claim perspective and from a medical perspective. That letter of declinationvised that it carried rights of review and the appellant thereupon sought a review of that decision. The letter requesting review also requested that a hearing be fixed as soon as possible. For whatever reason the respondent did not convene a review hearing within the 3 month period and so when the review did in fact take place the appellant contended that he was entitled to have the issue determined in his 3 favour pursuant to s.90(9) of the Act. The review decision did not accept that submission and the matter thereupon went on appeal to the District Court and in a decision dated 2 April 1997 His Honour Judge Middleton stated: "I consider that any delay which occurred was a delay by the respondent and not the appellant. In the circumstances therefore I consider that the appeal should be allowed. The appellant is therefore entitled to a finding that the decision of the respondent dated 19 December 1995 is over ruled and the decision should now be in the favour of the appellant." Following the delivery of that decision the Rotorua Branch of the respondent which was administering the appellant's file sought directions from Head Office Legal Section as to precisely what the position now was insofar as the appellant's claim for entitlement was concerned. It was following advice from HOL that the letter of 10 July 1997 was written to the appellant's advocate. That letter in its entirety states as follows: "I write further to Neil Oppatt's letter to you of 30 May 1997. Mr Oppatt advised that the Tokona file would be referred, in it's entirety, to Head Office Legal and Business Support Services to provide the Branch with a clear, legally based directive on how to proceed. The file has now been returned to the Branch and I am able to advise as follows: . As a result of the recent Court decision, ACC will now process Mr Tokona's application for backdated weekly compensation. . Mr Tokona's entitlement to weekly compensation must be assessed in accordance with the legislation. 4 . In order to assess Mr Tokona's entitlement, the Corporation requires further information, as follows: a) When did Mr Tokona resume employment for each of the periods listed below? b) How much did he earn? c ) What was his occupation? d ) If he did not resume employment was he in receipt of a benefit? e ) Who was his GP for the periods in question? The periods in question are: . The date ERC ceased in 1974/75 to date; resumed employment; or received further ERC (whichever is earlier) . The date ERC ceased in October 1976 to date; resumed employment; or received further ERC (whichever is earlier) . The date ERC ceased re: November 1976 claim to date; resumed employment; or received further ERC (whichever is earlier) . The date ERC ceased re: 1978 claim to date; resumed employment; or received further ERC (whichever is earlier) . The date ERC ceased re: 1980 claim to; the date resumed employment; or the present date. The information is requested pursuant to section 64 of the Accident Rehabilitation and Compensation Insurance Act 1992. It is noted that there have been orthopaedic reports supplied in the past from Mr R V Jackson, Mr W Donaldson (Chiropractor) and Mr D V Stanley- Clarke. None of these reports indicate that these medical practitioners examined Mr Tokona prior to 1992. The opinions are therefore not sufficient to enable the Corporation to determine Mr Tokona's pre-1992 incapacity. Could you please now ask your client to complete the attached consent form in order for the Corporation to obtain further medical information." On receipt of that letter Mr Mines filed an application for review stating in the application that he sought a review of the decision of 10 July "as it is an arrogant disregard of decision of District Court. The Corporation cannot lose graciously. Applicant seeks application of District Court decision... This matter has already been determined by a District Court decision." The appellant sought a revocation of the decision embodied in the letter of 10 July and the implementation of the District Court decision. On an examination of the Corporation file and by reference to internal memoranda, I find that it did not consider its letter of 10 July to be a decision letter giving a right of review, but rather it being simply a request for information and that it was wishing to proceed to implement the previous decision of the District Court. 6 The file equally discloses that the appellant's advocate was insistent on the matter being taken to review on this matter, contending that the Corporation was seeking to circumvent the District Court Judge's decision. The matter came on for a review hearing on 18 December 1997 and in a decision dated 15 February 1998 the Review Officer held that, having regard to this Court's previous decision of Hull (249/97), the letter was not a decision letter and therefore there was no jurisdiction to review. The Review Officer found that the Corporation had clearly expressed its acceptance of the fact that the appellant had entitlement to weekly compensation and that it was simply a question of determining the periods for which that compensation was payable and the amount of same. It is against that decision of the Review Officer that the appellant appeals to this Court. RELEVANT STATUTORY PROVISION Section 89(1) of the Act states: Any claimant (or the representative of any deceased claimant) who is dissatisfied with a decision of the Corporation in respect of his or her claim or entitlement under this Act may apply to the Corporation for a review of that decision. Mr Mines for the appellant submits that the letter 10 July 1997 is a decision letter within the meaning of s.89(1) because: (i) it is a decision to seek further information (ii) it is a decision to apply or invoke s.64 7 (iii) it is a decision which states clearly and without qualification that the medical evidence produced by the appellant is "not sufficient" (iv) it is a decision requesting the appellant to complete a consent form "in order for the Corporation to obtain further medical information" (v) it is a decision which chooses to treat Mr Tokona as an applicant for entitlement rather than a person already possessing entitlement by virtue of a judicial decision in the statutory provision. In furtherance of (iii) above Counsel submits that medical evidence is central to incapacity and incapacity is central to entitlement. He contends that the statement that the medical evidence is not sufficient constitutes a decision against incapacity. In furtherance of (v) above Counsel submits that the letter negates the decision of the Court in the previous appeal. It is a decision to treat the appellant as an applicant for entitlement rather than a person already possessing an entitlement. Mr Mines finally submits that this Court has jurisdiction to hear the appeal and to grant relief, namely a direction that the appellant is entitled to backdated the weekly compensation, the same to be calculated after considering the information that will be made available as to the appellant's employment record, details of his earnings and details of social welfare monies received. Mr Cash, Counsel for the Corporation, submits that the issue before this Court is the narrow issue of whether the 10 July letter is a decision letter. He submits that it is not open for this Court to embody in its decision matters pertaining to entitlements that the appellant may have as a consequence of the previous District Court decision. Mr Cash says that the Corporation does not challenge the question of entitlement and that the decision letter does not seek to do so, it is simply seeking to obtain further information so that the amount of entitlement can be calculated. Mr Cash contends that the letter is simply a request for further information and is not a decision letter within the meaning of s.89 and he refers to the decision of this Court in Hull (supra) in support of that submission. Finally, Counsel submits that the file should be referred back to the Corporation so that it can obtain the information necessary to enable it to calculate and make payment to the appellant of his entitlement. It is said that this requires the appellant's co-operation in providing the relevant information so that this matter can be expedited. DECISION In the judgment of Hull (supra) this Court was called upon to consider precisely what did constitute a decision within the meaning of s.89(1). This was a decision delivered by me on 1 December 1997 and in the intervening period to the present time, and in particular having regard to the submissions of Counsel in this case, I have no reason to change the view I expressed in that decision as to what the provisions of s.89(1) do mean. Firstly, review rights only attach to a decision in respect of a claimant's claim or entitlement. At page 11 of that judgment I stated: "If those meanings (the dictionary meanings) of the word "decision" are applied in the context of s.89 I find it clear that it is only decisions which, (i) 9 are the act of deciding a claimant's claim or entitlement, (ii) are the manifestation of the process of the conclusion that has been reached upon a particular claim or entitlement, (iii) conclude the consideration process and state the result, or (iv) identify the defining moment on any issue pertaining to a claim or entitlement: that are intended and meant by that word." In that case the particular letter in question was held to be one which did not affect the status or entitlements of the claimant but was purely explanatory and advisory of the position which had been determined or concluded by an earlier decision. In this present appeal I find that it is quite clear that the Corporation is not seeking to resile from or circumvent the consequences of Judge Middletons's decision, but rather it is seeking to obtain information from the appellant which will enable it to implement that decision. Contrary to the appellant's submission, I do not find that this letter constitutes a decision affecting the appellant's claim or entitlement. The fact of entitlement has been declared and the respondent is seeking to calculate the extent of that entitlement. As and when such a calculation is done and it is communicated to the appellant, that certainly would be a decision within the meaning of s.89. The Corporation may well make a calculation with which the appellant does not agree or it does not take into account a period of incapacity which the appellant says it ought. Those decisions, were they to be made, are decisions affecting entitlement but that stage has not yet been reached as the Corporation has still not yet been given all the information it needs in order to come to a decision. 10 This Court finds that this whole review and appeal process in this matter has been a pointless exercise and appears to be the culmination of personality clashes which appear to exist between the appellant's advocate and certain employees of the Corporation who have been dealing with the appellant's file. This Court was made aware that to date the question of implementing the appellant's entitlement to weekly compensation has not progressed one jot since Judge Middleton's decision. It seems that matters have not been put in proper perspective, particularly so I find by the appellant's advocate. This Court finds that the Review Officer was quite correct to rule that she had no jurisdiction to conduct a review of the Corporation's letter of 10 July 1997. The consequences of Judge Middleton's decision have been expressed and accepted by the respondent. That decision is that the appellant is entitled to weekly compensation dating back to the date of his first accident, but implicit in that is that such entitlement can only be within the metes and bounds which the Act provides. The sooner the information is provided to determine the quantum of the appellant's statutory entitlement, the sooner he will receive the benefit which has been denied him for a considerable time now. This appeal is dismissed. DATED at WELLINGTON this 17 day of August th 1998 M J Beattie District Court Judge Tokona.doc(gm)