Reinders v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 33/96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to 64/ 95 984 section 91 of the Act BETWEEN BERYL ROSEMARY REINDERS of Clive Appellant (Appeal No. DCA 232/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Ms A Dorset on behalf of the appellant and from Mr J Birks on behalf of the respondent with the request that I issue a decision on the papers. The issue is whether the respondent was entitled pursuant to s.77 of the Accident Rehabilitation and Compensation Insurance Act 1992 to require the appellant to refund an overpayment of earnings related compensation. The appellant who worked as a social worker injured her back in 1988 and thereafter received earnings related compensation. On 2 November 1993, the appellant's general practitioner, Dr Twigg, reported to the respondent: " She was first seen for this injury on 7.8.88. The diagnosis is as detailed in your report from Mr Curtis dated September 7, 1989. She continues to have lower back pain with instability and right foot drop. She has no current work capabilities - she remains unfit for work. I do not think she will ever be able to return to her previous occupation. 2 She has no other medical condition affecting her return to work, and I do not believe at this stage that any further rehabilitation assistance is likely to assist return to work. Her condition remains substantially the same as when reported on to you by Mr Curtis in 1989. I do not think there is significant likelihood of change in the future." On 16 November 1993, Dr Twigg issued a C15 Certificate in which he certified that as from 15 November 1993 the appellant was fit for selected work for up to 4 hours daily. That certificate was received by the respondent on 16 November 1993. Further medical certificates were subsequently provided to the respondent in the same terms. On 21 March 1994, the respondent received an IR12 form for the period between 1 April 1994 and 31 March 1995 which indicated that the appellant's occupation was an Attendant Care Coordinator and that her tax code had altered from "G" to "SEC". The appellant's then Case Manager arranged a meeting with the appellant in November 1994 from which she elicited that the appellant had commenced work on 1 November 1993 and was continuing to work in that employment. The respondent then notified the appellant that an overpayment of earnings related compensation had been made, that further payments would cease from 3 December 1994 and that subsequent advice would be given as to the calculation of the overpayment. On 6 December the appellant wrote to her Case Manager reporting that she was confused by the claim then being made because she had herself advised the respondent's office that she was working and had been told that apart from the medical certificates which she personally delivered to the respondent no further action was required from her. On 9 February 1995 the respondent notified the appellant of the amount of overpayment and requested a refund. On 12 February 1995 the appellant replied to that claim as follows: "With reference to your letter dated 9.2.95, and received 11.2.95. I believe I explained clearly in my letter dated 5.12.94 my feelings regarding the unjust claim, that I have been overpaid because of a total blunder by your office. I sustained my injury in August 1988, and was seen by both my G.P. and a Specialist, copies of their findings were sent to you - as you will note the prognosis was not good. AT NO TIME WAS I SEEN, HELPED OR ASSISTED BY A.C.C. TO REHABILITATE ME, in fact the first offer of help in my rehabilitation came from you in Nov 1994 ONE YEAR AFTER I HAD REHABILITATED MYSELF. As a Social Worker myself, I persuaded the Disability Resource Centre and Dr Twigg, to give me a trial as Co-ordinator for the Attendant Care programme in Nov 93, with their support allowing me freedom of movement and flexible hours, working from home, on bad days, I secured the posisition (sic). I was very proud to bring to your office my Medical Certificate from Dr Twigg on 16.11.93 (feeling I was once more a useful member of society). At the time of handing over that said certificate I asked if details of my employer, pay slips 3 etc were required, i (sic) was told "WE ARE NOT INTERESTED IN THAT ONLY IN THE HOURS YOU WORK" EVERY TWELVE WEEKS FOR MORE THAN A YEAR I PERSONALLY BROUGHT TO YOUR OFFICE MY MEDICAL CERTIFICATE, several times asking if that was all they required. I have also several times been in your office in my official working role./ I HAVE NEVER HIDDEN THE FACT I WAS WORKING AND FOR WHOME (sic). I last saw at your request, Mr Curtis in Dec 94, my injury to work for my own self esteem, I certainly do not want to be one of your so called BLUDGERS, but I will not repay money because of your blunder. By the way how come you made me a payment as late as 2.2.95??? I suggest you get your own house in order, and direct this problem to your own office, not me." The appellant applied for a review of the respondent's decision and at the review hearing the appellant repeated the statements she had made in her letter of 12 February 1995. The review officer held that for the period from 21 March 1994 the appellant did not intentionally contribute to the debt because the IR12 form which she had provided satisfied the review officer that she had acknowledged that she was working. For the period from 1 November 1993 until 20 March 1994 the review officer held that the appellant had intentionally contributed to the debt in that she was already working when she submitted her first C15 certificate that she was fit for selected work, that Dr Twigg's report of 2 November 1993 had confirmed her ability to work was unaltered and that no future improvement was likely and that her statement that the respondent was aware she was working could not be accepted because of her failure to provide details of earnings in accordance with the notice on the assessment advices issued with payments of earnings related compensation. The review officer was concerned that the appellant had continued to accept payments from the Corporation at a time when she was receiving in excess of her previous earnings without her raising a doubt with the respondent. However, the review officer concluded that after the filing of the IR12 form on 21 March 1994 and having changed her circumstances demonstrated that the funds then received had been received in good faith. The review officer then concluded that the overpayment which arose prior to 21 March 1994 should not be remitted while the payments thereafter should be remitted. Ms Dorset submitted that the review officer failed to properly analyse the factual situation and failed to give adequate weight to the evidence of notification to the Corporation regarding the appellant's working status. She submitted - 1. That while the appellant had persuaded Dr Twigg to permit her to commence work on 1 November 1993, the C15 Certificate was completed and lodged with the respondent by the appellant herself on 16 November 1993. That was a very short period and could only be considered a minimal delay. In addition, the appellant had requested the person to whom she delivered 4 the certificate to advise whether any further information was required because of her employment status and on the basis of the reply she got took no further action. 2. That while the review officer considered there was a conflict between Dr Twigg's report of 2 November 1993 and his certificate of 16 November 1993 that conflict should be resolved in favour of the appellant. She had stated in her evidence that she had persuaded Dr Twigg to permit her to commence work on a limited basis and that the certificate then spoke for itself. The only comment which could be claimed to be in conflict with her ability to commence work was the statement by Dr Twigg in his report of 2 November 1993 when he thought that "I do not think she will ever be able to return to her previous occupation". 3. That the review officer was wrong to hold that the appellant had failed to satisfy the onus on her to provide details of earnings for the period prior to the submission of the IR12 form. The appellant's contention is that in her evidence given on oath at the review hearing she herself delivered the regular C15 Certificates to the respondent's office and raised questions with the staff in the office as to whether any further details were required from her because she was then working 4 hours per day. She said that she was advised that no further information was required because the small number of hours she was working was not of interest to the respondent. The appellant accepted and relied upon that advice. 4. That the review officer was wrong to hold that the appellant had not accepted the money in good faith for the period between 1 November 1993 and 20 March 1994. That submission is made on the basis that the evidence showed that the appellant had informed the respondent of her current employment status and had continued to do so but acted on the advice of the respondent's staff that no further information was required from her. 5. That the evidence demonstrates that the appellant did act in good faith in that she supplied medical certificates every 12 weeks and that on virtually every occasion she repeated her enquiry as to whether she was required to provide any further information and on each occasion received the same response. That it was not until September 1994 when she was advised that a new Case Manager was assigned to her that she had any regular contact with the respondent's officers and it was only after that assignment that the present issues were brought to light. Even after the initial meeting with the new Case Manager and her disclosure regarding her working arrangements no immediate comment was made by the respondent. 6. That the appellant did alter her position in reliance on the payments because in her evidence she stated that she had purchased a house in the knowledge that the income she was then receiving would be sufficient to fund the mortgage repayments. Mr Birks submitted: 5 1. That the appellant was under a statutory onus pursuant to s.64 of the Act to provide details of earnings and that the compensation assessment letters notified her of that onus. While the appellant in evidence said that she did not remember receiving such letters, it was then open to the review officer to conclude as a matter of credibility that the appellant had received the letters and that given her statement that she had approached the respondent on a number of occasions requesting information then she was aware of her obligations. 2. That the review officer was entitled to make this credibility assessment that the appellant had contributed to the debt because she had commenced work prior to lodging the certificate stating that she was fit for selected work and that her enquiries of the Corporation could only be said to have been couched in general and informal manner to counter staff when she could have approached her then Case Manger for that information. 3. That the appellant did not receive the excess payments in good faith because the payment she was receiving was more than she had received when working full time prior to the accident and that if she was concerned about the money she received she could have directed enquiries to her Case Manager. 4. That it cannot be said that she altered her position in good faith because it was as a result of an error that she was earning more than she had been earning when working full time and this enabled her to purchase a house and to pay off the debts. Also that in the absence of specific earning details the review officer was entitled to make the inference that the appellant was able to repay the money and that it would not be inequitable to do so. The issue is governed by s.77 of the Act which states: '77. Recovery of overpayment sand unpaid premiums by Corporation - - (1) If any person received any sun of money from the Corporation - - (a) Which is in excess of the amount to which he or she is entitled under this Act; or )To which he or she is not entitled - - the sum of money shall, except to the extent that it is recovered under subsection (3) of this section, be debt due to the Corporation and may be recovered by way of proceedings or deducted from any amount thereafter payable to that person (whether or not in respect of the same personal injury). (2) The Corporation shall remit in whole or in part a debt which arose as a result of an error not intentionally contributed to by the debtor if the Corporation is satisfied that the person receiving the amount so paid in error did so in good faith and has so altered his or her position in reliance on the validity of the payment that it would be inequitable to require repayment." The appellant's evidence appears to me to have been consistent from the time she was first notified by her new Case Manager that there were difficulties. She then 6 wrote her letter of 12 February 1995 which very clearly stated the position as she saw it and she has continued to maintain that stance. Her evidence disclosed that her previous Case Manager had not been involved with her in any way and that any rehabilitation which had been effected had been done by her own endeavours. She said that it was not until the new Case Manager was appointed in November 1994 that the appellant in any way became involved with discussions with the staff of the respondent other than the occasions when she said that she delivered the regular medical certificates to the counter. While the Court is always reluctant to interfere with the review officer's decision I consider that the evidence clearly indicates that at no time did this appellant knowingly mislead the respondent. When she persuaded Dr Twigg to provide her with the medical certificates on 16 November 1993, she immediately delivered that to the respondent's office where she explained that she was then working and requested advice as to whether any further information was required from her. The appellant has given that evidence on oath and has explained that similar procedures took place on the delivery of each medical certificate. While it has been suggested that she should have approached her Case Manager rather than office staff, I do not accept this submission. It was clearly open to her to seek advice when delivering the certificates which was the requirement placed on her and she accepted the advice given on those occasions. In addition her uncontradicted evidence was that her previous case manager took no real interest in her progress and the rehabilitation which she achieved was solely through her own efforts. I am also satisfied that the appellant had acted in good faith throughout the whole of these proceedings up until the time she was notified of the claim for excess payments. I am also satisfied that she altered her position in the honest belief that she was fully entitled to the payments she received. Accordingly, the appeal is allowed and all the overpayments will be remitted. There will be costs of $800 to the appellant. DATED at WELLINGTON this 10~ day of May 1996 A W Middleton District Court Judge de232-95.doc(rd) . .