Matthews v Accident Compensation Corporation

Decision No. 182 /2001 IN THE MATTER of the Accident Insurance Act 1998 AND IN THE MATTER of an appeal pursuant to s. 152 of the Act BETWEEN BRENT JAMES ROY MATTHEWS of Dunedin (Ref: ACA 24/00 and Al 540/00) Appellant AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent BEFORE THE ACCIDENT COMPENSATION APPEAL AUTHORITY Judge A W Middleton APPEARANCES/COUNSEL H J Peart for appellant P A McBride for respondent HEARD at DUNEDIN on the 21st day of May 2001 [1] Counsel have advised the Registry that in completing my decision No. 165/2001 and my decision as Accident Compensation Appeal Authority No. 9/2001 I failed to answer one issue; that is, whether the proceedings should be conducted under the provisions of the 1972 and 1982 Accident Compensation Acts or under the Accident Insurance Act 1998? The issue arises out of an accident sustained by the appellant on 13 September 1986 when he suffered a major head injury when he was struck by a motor car when riding his bicycle. At that time the appellant was aged 5 years. A claim was lodged with the then Accident Compensation Corporation, and was accepted, and various entitlements were paid over the ensuing years. [2] Following the decision in ACC v Campbell [1996] NZAR 278 which found that that appellant who was in need of "constant" personal attention was entitled to 24 hours per day Attendant Care under the provisions of the 1982 Act the 2 respondent became involved in identifying claimants who were likely to be affected by that decision. [3] In the result the appellant's position came to light and the matter proceeded by way of an application for Attendant Care for the appellant pursuant to s.80(1) of the 1982 Act in respect of the appellant, and a further claim under s.80(2)(b) by the appellant's mother. Thereafter correspondence between the appellant's counsel and the respondent centred on the issue of whether the claims should be dealt with under the 1982 legislation or were required to be considered under the handling provisions of the Accident Insurance Act 1998. [4] On 11 February 2000 the respondent notified the appellant's counsel that it did not accept that the 1998 Act timeframes applied. On 4 April 2000 the respondent advised the appellant's counsel that it considered that the appellant was not in need of "constant" personal attention by reason of the accident. [5] Two applications for review were then lodged. One in respect of the decision in the respondent's letter of 11 February 2000, and one in respect of the decision of 4 April 2000. [6] Following a review hearing the Review Officer concluded that for an entitlement to backdated Attendant Care compensation the appellant required to establish that he had an entitlement to that compensation as at 30 June 1992, being the date upon which the 1982 Act was superseded by the Accident Rehabilitation and Compensation Insurance Act 1992. The Review Officer found that the provisions of the 1998 Act could not retrospectively apply to vest new entitlements. Decision [7] The appellant has submitted that following the enactment of the Accident Insurance Act 1998 the claims process in respect of 1972 and 1982 claims was replaced by the timeframes contained in the 1998 Act. [8] The respondent submits that cover having been granted under the 1972/1982 Acts, the assessment process had to be carried out in accordance with the provisions of those Acts. The provisions of the 1992 Act continued the entitlements to compensation for appellants who had already been accepted for cover under the 1972 and 1982 Acts, subject to Part Vil of the 1992 Act (s. 135(4)). [9] Section 149(1) which is contained in Part Vil of the 1992 Act provided that the provisions of the 1972 and 1982 Acts "shall continue to apply" to a person "entitled to receive" that compensation "as if those sections had not been repealed". The issue for the Court then, is when the 1992 Act came into force the appellant was entitled to receive compensation immediately prior to 30 June 1992. [10] The issue of entitlement to backdated Attendant Care under the 1972 and 1982 Acts therefore had to be decided under the provisions of those Acts (s. 135(4) and s. 149 of the 1992 Act). 3 [11] In order to come within the provisions of s. 149(1) of the 1992 Act the appellant was required to establish that as at 30 June 1992 he already had cover under the 1982 Act for which he qualified for compensation. [12] When the 1998 Act came into force on 1 July 1999, s.439 preserved the appellant's position under s. 149 of the 1992 Act if he already had rights which were vested. It follows that compensation which had already vested by virtue of the 1982 Act would thereafter continue as an entitlement so that the 1998 Act claims handling provisions were thereafter irrelevant so far as that established claim continued. [13] Section 453 of the 1998 Act provided that Part IX of the 1982 Act continued in force in order to apply to any decision made under the former Acts, and that any such decision carried with it the 1972 and 1982 Act review and appeal rights. [14] It therefore follows that the appropriate procedure for consideration of this appellant's rights of review and appeal must be the procedure provided by the 1972 and 1982 Acts. I conclude that such a decision is in line with the provisions of ss. 17 and 18 of the Interpretation Act 1999. [15] I do not consider that the appellant is entitled to a "deemed decision" under the 1998 Act in respect of the decision contained in the respondent's letter of 4 April 2000. I consider also that the decision of the Review Officer was correct. consider that the consideration of both the applications under ss.80(1) and 80(2)(b) had to be conducted in accordance with the review and appeal provisions of the 1972 and 1982 Accident Compensation Acts. The appeal is therefore dismissed. DATED at WELLINGTON this 13th day of July 2001 puumadula A W Middleton District Court Judge ai540-2000.doc(aw)