Ramage v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 5?-/9-! UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act 39.94 - 0460 BETWEEN BRIAN DESMOND RAMAGE of Christchurch Appellant (Appeal No. DCA 81/94) . . AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent . . HEARD on the 21st day of September 1994 APPEARANCES A M Stevens for appellant. J W Saxton for respondent. . . DECISION OF JUDGE AW MIDDLETON The issue in this appeal is whether the appellant is entitled to lump sum compensation under the Accident Compensation Act 1982 as a result of deterioration of his bodily function. . 2 The appenant who is now aged .58 suffered personal injury by accident on 11 October 1991. He injured his back while lifting buckets f_illed with concrete grout during his work as a painter. The respondent accepted his claim and the appellant received earnings.related compensation. On 5 August 1992, the-appellant applied · for lump sum compensation under sections 78 and 79 of the Accident Compensation Act 1982 and the appropriate awards were made in respect of each section. On 22 June 1993, the appellant advised the respondent that his condition had deteriorated and a further report from his Orthopaedic Surgeon, Mr Talbot, confirmed that his previous disability of 15% of body function had increased to 25%. On 28 October 1993, the respondent advised the appellant that as it had not received notification prior to 31 March 1993 of his wish to claim a lump sum award for deterioration, it was unable to consider such a payment, but advised the appellant that he could apply for an independence allowance under the 1992 Act. The appellant applied for a review of that decision and the Review Officer dismissed the application for review· on the ground that the question of deterioration came to be considered under s.148(3) of the 1992 Act. Section 148 states: "148. Persons who have received lump sums under Janner Acts- (1) Except as provided in subsections- (2) and (3) of this section, where any person has received any payment under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982, that person shall not be entitled to any independence allowance under this Act in respect of that personal injun;. (2) Where any person to whom subsection (1) of this · section applies has already received compensation for personal injun; VIJ accident under section 119 or section _120 of the Accident Compensation Act 1972 9r section 78 or section 79 of the Accident Compensation · Act 1982 between the 30th day of June 1991 and the ist day of July 1992. (both dp.ys . exclusive), that person shall be entitled to refund all such payments received to the . Coryoration not later than the.1st day of April 1993 and receive an independence.allowance in. respect of that personal-in jun; by accident under and subject to the-conditions· of this Act payable from the date on which the assessment for the independence allowance was made or the refund was paid, whichever is the later . . (3) Notwithstanding subsection (1) of this section, any person who suffered personal injun; 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 since the 1st day of July 1992 suffered an increased degree of permanent loss or impairment of bodily function resulting from that personal injun; by accident, may apply for an independence allowance under and subject to the conditions of section· 54 of this Act, buy any such independence allowance shall. be calculated by -deducting from any degree of disabili-hJ assessed under that section any percentage permanent loss or impairment of bodily ftmctzon · in respect of t!uzt personal injun; by accident in respect of 1clzic!1 a payment has been made under section 119 of the Accident Compensation Act 1972 or section 78 of the A[cident Compensation Act 1982." Mr Stevens provided a long submission in relation to the application of s.135 of the 1992 Act and endeavoured to persuade me that because s.135(4) refers to "the 3 conti:r.:med entitlement of the person to compensation_ etc", that someho,v referred · · back to s.135(1) and permitted an award of a lump sum. As I explained to Mr Stevens at the hearing, I considered that the provisions of s.135 are quite plain and logical and cover three separate and distinct positions, · these being: 1. That a person who has suffered personal injury by accident under either the 1972 or 1982 Acts (which has been accepted by the respondent) shall be deemed to have suffered personal injury that is covered by the 1992 Act. 2. A person who has suffered personal injury by accident under either the 1972 Act or the 1982 Act before the commencement of the 1992 Act and who has lodged a claim with the respondent in respect of the injury before 1 October 1992, which has not, at that stage, been determined, is entitled to have its acceptability determined under the 1982 Act as if it had not been repealed. Then subsection (4) merely confirms that that person thereafter shall receive continued entitlement to all the necessary grants etc. as are appropriate under the 1982 Act but subject to Part VIII of the 1992 Act. 3. The third situation covered by the section is the position of a person who has suffered personal injury by accident under either the 1992 or 1982 Act and who.has not lodged a claim with the respondent before i (?ctober 1992 but· . whose personal injury would otherwise be personal injury within the meaning of the 1992 Act. As I said to Mr Stevens, it seemed clear that the transitional provisions merely trace the various possibilities which could exist at the inception of the 1992 Act, and provides for the manner in which their possible claims should be considered. In· this case this appellant clearly falls within the· provisions of s.135(1) in that ·his claim has already been accepted as person· a1 injury by accident under the Accident Compensation Act 1982, and he is thereafter deemed to have been a person who has suffered personal injury that is covered by the 1992 Act Section 147 states: "147. Compensation for non-economic loss-(1) Where any person had an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 but has not receit1ed that compensation and makes written application for that compensation before the 1st day of.· April 1993, that person shall be entitled to payment under those sections if payment _ is made · on or before the 30th day of June 1995 or after that date if pursuant to a decision given on review or appeal under Part IX of the Accident Compensation Act 1982 as continued in force by section 152 of this Act. (2) Where any person has suffered personal injun; by accident to which the Accident Compensation Act 1972 or the Accident Compensation Act 1982 applies, and- (a) I1wt person has an entitlement to compensation under section 119 or section 12Q of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident -± Co111pe11satio11 Act 19.82 i11 · respect of that personal i11j1m;, but ha.s not receiz,ed any pay111e1it !l11der any of those sections in · respect of that personal injun;; and (b) T7zat person u·oztld haz,e a11 entitlement to a11 independence allozcmzce under this Act zf the personal injun; had been suffered on the 1st day of July 1992-_ that person shall be entitled to elect in writing, 11ot later thmi the 31st day of March 1993, to receiz•e either Jzis or her entitlement llnder section 119 or section 120 of the Accident Co111pe11satio11 Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982, or an independence allowance under and subject to the conditions of this Act, but not both. [(2A) For t/ze avoidance of doubt, it is hereby declared that, for the purposes of subsection (1) and (2) of this section, no person has an entitlement to compensation under section 119 or section 120 of tire Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 unless a claim in respect of tire personal injun; by accident hnd been lodged with the Corporation before tire 1st day of October 1992.] (3) Subject to section 148 of this Act, if- (n) No payment hns been made in respect of personal injun; m; accident under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982; and (b) No payment is made under subsection (1) of this section; and (c) No election is made under su'f?section (2) of this section- the person shall be deemed to have elected to receive an independence allowance under and subject to tire conditions of section 54 of this Act as if the personal injury m; accident was personal injun; that hnd been suffered on tire 1st day of July 1992. (4) WJrere any election to receive an independence allowance is made under subsection (2) of this section, no paynrent shfzll '/;Je made under subsection (1) of this section.. 11 As can be seen s.147(1) of the 1992 Act covers the position of a person who has an entitlement to lump sum award under the 1972 or 1982 Acts, but has not received that compensation and who can make a written application for compensation before 1 April 1993. Section 78(7) of the 1982 Act entitles a person who has c1.lready been awarded payment under s.78 of that Act, but experiences deterioration to apply for_ further compensation and this may fall within the terms of s.147(1) of the 1992 Act. .Section 147(2) of the 1992 Act covers the position of a person who has suffered personal injury by accident under either the 1972 OF 1982 Acts for· which he has ;not' received· payment artd who would have an entitlement - to an independence allowance under the 1992 Act. That person may make an election in writing before 31 March 1993 to receive either the entitlement under the 1972 or 1982. Acts or an independence allowance under the 1992 Act, but not both. Section 147(2A) makes it clear that no person can obtain an entitlement to lump sum awards under the 1972 or 1982 Acts unless the claim for personal injury by_ accident has been lodged with the Respondent by 1 October 1992. The next step is to proceed ·to s.148 which covers the position of a person who has already received payment of lump sum awards under either the 1972 or 1982 Acts. Such a person is not also entitled to an independence allowance, but if that person elects to refund all the payments received under the earlier Act, and such payment is received by the appellant before 1 April 1993, then that person can_recei ve an independence allowance in respect of the personal injury by accident. 5 Section 148(3) provides that where a person who has suffered personal injury under either the 1972 or 1982 Acts before 1 July 1992, and who has since 1 July 1992 suffered an increased degree of permanent loss or impairment of bodily function resulting from that accident, such a person may apply for an independence allowance under s.54 of the 1992 Act. That is the provision which the Review Officer, in my view, correctly applied in the determination of this appellant's application for review. The legislation seems to me to be quite clear that that is the only course open to the appellant because he failed to make the necessary written application before 1 April 1993. His application for reassessment was made on 22 June 1993 so that he is not, therefore, eligible for a further lump sum payment. I agree with Mr Steven's submission that it is still open to the appellant to apply for an independence allowance pursuant to s.148(3) of the 1992 Act. The appeal is dismissed. Dated at Wellington this 30th day of September 1994 -Judge A W Middleton 81-94.doc(mh)