Rauhihi v Accident Rehabilitation and Compensation Insurance Corporation

____ , _____ ----------··--·- ... ·---·------------ IN THE DISTRICT COURT 1' the HELD AT WELLINGTON Decision No. "26 / 14- Appeal No. DCA 19/93 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN TI-IE MA TrER of an Appeal pursuant to REVIEW NO. 69/93 / 2060 Section 91 of the Act BETWEEN BEVERLEY LORRAINE RA UHIHI of Palmerston North Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a bodv corporate duly constituted under the provisions of the said Act Respondent DECISION ON TI-IE PAPERS This decision is issued in relation to the question of jurisdiction only and not in relation to the substative appeal. The appellant lodged an appeal in the District Court against the decision of the Review Officer who upheld the respondent1 s primary decision issued pursuant to. s.73 of the Accident Rehabilitation and Compensation Insurance Act 1992 ceasing payment of earnings related compensation as from 31 August 1992. The facts which gave rise to the review hearing are that the appellant suffered personal injury by accident on 5 June 1990. The appellant was accepted as having cover under the Accident Compensation Act 1982 and was paid earnings related .. cmnpensation until the decision of the respondent issued on 17 August 1992 · -directing that payment would cease from 31 August 1992. At the review hearing it appeared that the issue was the appellant's capacity for work. I then issued a Memorandum to the parties on 27 September 1993 2 suggesting that in order to obtain a speedy disposition of the appeal the parties may accept that the appeal came within the exception to s.93 provided by s. 93(2)(i). ; Matters have progressed from that date with the result that both parties have provided me with further submissions which I accept clearly demonstrate that the issue cannot be resolved pursuant to s.93(2)(i). The issue, as I understand, it which has to be resolved at the substative appeal, is whether or not the appellant's continuing incapacity is a result of personal injury by accident or the result of gradual process, disease, infection, or ageing process. The respondent's decision of 17 August 1993 was issued pursuant to s.73 of the 1992 Act which states: "(1) The Corporation shall, and any exempt employer may, if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment for treatment, service, or related transport, or the payment of compensation, grant, allowance, or provision of rehabilitation. (2) The Corporation shall, and any exempt employer may, upon the unreasonable refusal or failure of any person to - (a) Comply with any requirement made under any provision of this Act relating to any claim; or (b) Undergo medical or surgical treatment in respect of personal injury (irrespective of whether the Corporation is required or permitted to contribute towards the costs of that treatment); or (c) Agree to an individual rehabilitation programme - decline to make any payment under this Act." The appellant submits, and I agree, that as the appellant's claim had been accepted under the Accident Compensation Corporation Act 1982 and she was in receipt of earnings related compensation under that Act on 1 July 1992, s.135(1) of the 1992 Act applies to her. Section 135 states: "135. Relationship of this Act and former Acts - (1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 suffered before the 1st day of July 1992 shall be deemed to have suffered personal injury that is covered by his Act. (2) Nothing in subsection (1) of this section shall apply if it is subsequently determined that the person had not suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982. 3 (3) 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 1st day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the 1st 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. (4) Where subsection (3) of this section applies, the continue entitlement of the person to rehabilitation, compensation, grants, and allowances shall be determined under those Acts, as appropriate, but subject to this Part of this Act. (5) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is covered by either of those Acts, and who has not lodged a claim with the Corporation in respect of that personal injury by accident before the 1st day of October 1992, shall have cover under this Act only if that personal injury by accident is also personal injury that is covered by this Act." I do not accept that the issue falls to be determined under s.135(3) because the claim was already accepted prior to 1 July 1992. The respondent submitted that the appeal could be considered to fall within the provisions of s.152 which now reads: _( \ "Where any decision has been made under the Accident Compensation Act 1972 or the Accident Compensation Act 1982, or under either of those Acts as applied by this Part of this Act, Part IX of the Accident Compensation Act 1982 shall continue in force in respect of that decision, as if that Part and those Acts had not been repealed. 11 I do not accept that submission because the issue in the appeal is not the decision to pay earnings related compensation but the decision made under s.73 of the 1992 Act to cease the further payment of earnings related compensation on the basis of the information then held by the respondent. I consider that s.152 relates to appeals to be decided in respect of a decision made under the 1982 Act whereas this case has proceeded beyond that decision and by s.135(1) the appellant is deemed to have suffered personal injury that is covered by the 1992 Act. I consider that the appeal does raise a medical question. Accordingly I hold that the appeal is to be heard in the District Court at Wellington and that the Registrar is to appoint two District Court Medical Assessors to sit with the Judge who hears the appeal. DATED atWELLINGTONthis 2._9i-h day of J4 ne 1994 burmadue Judge A W Middleton DCA19-93.doc: (TE)