Hull v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 249 /97 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 BRUCE NORMAN HULL DCA 129/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 10th day of November 1997 APPEARANCES: Mr G Wakefield for appellant Mr D G Clarke for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the Corporation's letter of 22nd October 1996 to the appellant's solicitors was a decision letter which attracted a right of review in accordance with the provisions of s.89 of the Act. 2 Background Facts In April 1992 the appellant, then describing himself as a casual labourer, sustained an injury to his back whilst lifting wool bales. At the time of this accident the appellant was employed by a firm of wool scourers. The appellant commenced to receive weekly compensation as a consequence of his inability to work and weekly compensation continued from the date of the accident down to January 1996. In January 1996 the Corporation suspended payment of weekly compensation in the belief that the appellant had been working and not declaring such income. The appellant filed an application for review of that decision. An internal review by the Corporation of its decision was carried out and the suspension was revoked and weekly compensation reinstated in June 1996. Vocational rehabilitation was then discussed with the appellant who indicated a desire to enter the business of importing and selling jewellery. On the 27th of June 1996 the appellant signed an Individual Rehabilitation Plan which envisaged the appellant entering into business. On the 23rd of July 1996 the Corporation wrote to the appellant in relation to his proposed self employment and that letter in its entirety is as follows: "Dear Bruce Thank you for the information you provided me regarding your self employment as a jewellery importer and seller. 3 The Accident Rehabilitation & Compensation Insurance Corporation has a responsibility to offer rehabilitation to people such as yourself to assist you back into the work force when a change of occupation is required. In your situation, you have decided that importing and selling jewellery would be the most suitable avenue for you to pursue for full time employment. I have expressed to you ACC's concern over the viability of the business, especially our concern over the following - the cost of establishing the business and working capital requirements and the level of sales generated and converted into profits. However, you are adamant that you wish to proceed with your venture. 1 . From 15 July 1996 your weekly compensation payments will be recoded to a vocational rehabilitation allowance. To assist you in establishing yourself as a jewellery importer and seller, vocational rehabilitation allowance payments will continue in full until 3.10.96. 2. ACC cannot accept responsibility for the viability of the business and you are advised to utilise the services of accountants, solicitors, and business advisers. In the event of your business failing during or after the period of ACC support, then you will have to accept responsibility for seeking your own employment thereafter. 3. You advise that you have discussed this with your General Practitioner and it appears he is supportive of your business and that it will not aggravate your back condition. 4 4. I have clearly outlined all the rehabilitation options available to you, eg, retraining for suitable alternative employment. However, you have decided to proceed with self employment as a jewellery importer and seller. Therefore it is your responsibility to promptly advise me of any problems that affect your self employment, thus ensuring that appropriate rehabilitation may proceed. ACC may also require specialist medical opinion to confirm any aggravation to your injury or other medical problems which limit your participation with your Rehabilitation Programme. 5. ACC will consider at the completion of this programme, 3.10.96, that it has fulfilled its obligation to rehabilitate you back into the work force and you have been fully assisted into employment of your choice suitable to your injury. We will however continue to contribute to the costs for ongoing medical treatment required for your injury, subject to ACC Regulations. If you are not satisfied with this decision, or if there is something you do not understand, you should contact me immediately and discuss your concerns. I will explain the decision and will explain your right to ask that the decision be reviewed. If you do want the decision to be reviewed a request must be made in writing using a special form which is available from our office. The written request for a review must be received within three months from the date of this letter. I wish you well with your employment opportunity. I am available to further discuss your rehabilitation upon request. Should you have an queries, please contact me on (03) 684 1507. Yours sincerely Carolyn Hardie CASE MANAGER" In early October 1996 the appellant provided a Medical Certificate indicating a fitness for light work from 1st October 1996. He stated in a note that he was "looking forward for ongoing payment in due course." In response the Corporation wrote to the appellant on 7 October 1996 providing copies of the rehabilitation plan and the letter of 23rd July 1996 outlining the Corporation's and the appellant's responsibilities. On 17 October 1996 the appellant's solicitor wrote to the Corporation outlining his view of the Corporation's legal obligations. That letter stated inter alia: "Please note your obligations under the Accident Rehabilitation & Compensation Insurance Act 1992. You cannot contract out of your obligations to pay my client compensation for his ongoing incapacity. He has accordingly provided you with a further Medical Certificate confirming his incapacity. We would therefore be grateful if you would confirm, at the earliest opportunity, that you will continue to pay my client's earnings related compensation as required under the Accident Rehabilitation & Compensation Insurance Act 1992." On the 18th October 1996 the Corporation responded to the appellant's letter and stated inter alia: 6 "As outlined in the letter of 23.07.96, the Corporation was particularly concerned over the viability of the business, especially the following: * the cost of establishing the business work capital requirements * level of sales generated and converted into profits You were given the choice to be involved in a rehabilitation programme to retrain in an appropriate field of work; however you still chose to continue with your Life Style Fashion business despite all our concerns. Unfortunately as per the decision letter already sent on 23.07.96, your weekly compensation ceased on 3.10.96." In a letter dated the 22nd October 1996 the Corporation responded to the appellant's solicitor's letter of 17 October and that letter in full is as follows: "Thank you for your letter dated 17 October 1996. Please find attached a copy of the Rehabilitation Programme letter that was posted to Mr Hull on 23 October 1996, also a copy of the assessment of the business from the Small Business Centre. As you will see from the correspondence the business was not a viable option and there was also concerns about Mr Hulls personal skills, the costs of establishing the business, working capital requirements and level of sales generated and converted into profits. Mr Hull was given the choice whether to proceed with this business, given the assessment information or to develop an alternative active rehabilitation 7 programme where he would have gained an opportunity to be involved in training to lead into suitable paid employment. Mr Hull was adamant that he wished to continue with his self employment proposal. I was not seen a viable option, for this reason the Corporation could not fully support it. Given this information and the fact the (sic) Mr Hull was adament (sic) to proceed the Corporation out of goodwill extended his weekly compensation for a further 21/2 months. I wish to point out at this stage weekly compensation could of been ceased under Section 73 for failure to agree or comply with a more suitable rehabilitation programme. I contacted Mr Morris, Mr Hull's General Practitioner and he agreed Mr Hull was indeed fit for importing and selling jewellery business and has now issued a medical certificate supporting this. He also advises on this medical certificate that he has restrictions however these restrictions are not relevant to this current business. I therefore wish to advise that Mr Hulls weekly compensation ceased on the 3 October 1996 which was part of the agreed signed rehabilitation contact (sic). If you wish to discuss this further please do not hesitate to contact me on (03) 6831507. Yours sincerely Carolyn Hardie CASE MANAGER" 8 On 12th November 1996 the appellant, through his solicitor, filed an application for review. That application stated that it was seeking a review of the decision of 22nd October 1996 and stating "the decision refusing to continue to pay earnings related compensation is incorrect in fact and law." That application for review was accepted and registered as such by the Corporation but by letter dated 14 January 1997 the Corporation advised the appellant's solicitor that the application for review was registered in error and must therefore be withdrawn. The basis for that decision was that the application for review was in fact received outside the three month time period allowed by statute. The letter contended that the application for review must relate to the Corporation's decision of 23rd July 1996 and that the letter of clarification of 22 October 1996 was not capable of being reviewed as it was not a decision letter. On the 17th of January 1997 the appellant filed a further application for review, this time seeking a review of the Corporation's decision of the 14th of January 1997. In her decision of 22nd April 1997 the Review Officer held that the letter of 22nd October 1996 was not a decision which attracted review rights and, as there were strict time limits for the filing of an application for review, the application for review filed by the appellant on 12th November 1996 could not be considered as being an application to review the Corporation's decision of 23rd July 1996 as it was out of time. It is to be noted that at all times during the appellant's dealings with the Corporation in 1996 he had solicitors acting for him. Submissions Counsel for the appellant submits that the Corporation's letter of 22nd October 1996 was a decision of the Corporation within the meaning of that word as contained in s.89 of the Act. 9 Counsel contends that the Corporation's refusal to pay Mr Hull earnings related compensation by stating that his weekly compensation ceased on 3rd October 1996 as part of an agreed signed Rehabilitation Plan is clearly and unequivocally a decision. Counsel refers to Blacks Law Dictionary 6th Edition where "decision" is defined as "a determination arrived at after consideration of facts, and, in legal context, law. A popular rather than technical or legal word; a comprehensive term having no fixed legal meaning. It may be employed as referring to administerial acts as well as to those that are judicial or of a judicial character." Counsel submits that by responding to the solicitor's letter and advising that Mr Hull's weekly compensation ceased on 3rd October 1996 and by taking the extra step of answering Mr Hull's further request to continue payments by advising that it will not continue to pay weekly compensation, clearly amounts to a decision. As an alternative submission counsel for the appellant submits that the Corporation failed to answer a specific request from Mr Hull to pay him make-up pay and that such a decision is reviewable if the Corporation do not advise the claimant of its decision within one month as provided in s.66 of the Act. Furthermore counsel for the appellant submits that by the fact of the Corporation declining to consider the legal position as pointed out to it by the appellant's solicitor in his letter of 17 October 1996, that was itself a new decision in accordance with s.67A of the Act and as such was a decision that was capable of review. Counsel for the respondent submits that, in accordance with the principles of s.5(J) of the Acts Interpretation Act 1924, the Act is to be given a purposive interpretation and that on such a purposive approach the letter cannot be a decision for the purposes of s.89. 10 Counsel contends that a clear purpose of s.89 is to provide a time limit for the exercise of review rights and that purpose would be defeated if, after the expiry of three months from the date of a decision, a claimant could simply request the Corporation to undertake that which its "decision" had earlier stated was to the contrary, and have its refusal to do so deemed a new "decision". This would simply be giving rise to open-ended rights of review from a Corporation's decision. Furthermore counsel contends that such would severely inhibit the Corporation's ability to communicate with its claimants. Counsel further contends that s.66 of the Act cannot apply in the circumstances of the facts of this case; s.66 only applies to a duly completed claim and that the request of the appellant or his solicitor for make-up pay was not a completed claim for an entitlement in a prescribed form as required by s.63 of the Act. Decision 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." I agree with counsel for the respondent that a purposive approach to statutory interpretation is the correct approach for a statute such as the ARCIC Act 1992. Under the Act it is only a decision in respect of a claimant's claim or entitlement provided by the Act which is reviewable. The Concise Oxford Dictionary defines "decision" as "the act or process of deciding, a conclusion or resolution reached, a settlement of a question." 11 The Collins Concise Dictionary states "the act of making up one's mind, a judgment, conclusion or resolution reached or given." If those meanings of the word "decision" are applied in the context of s.89 I find it clear that it is only decisions which, (i) 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. On the facts of this case a decision was made on the 23rd of July 1996 as to the appellant's continued entitlement to weekly compensation. The letter makes it clear that from the 15th of July 1996 weekly payments will be regarded as a vocational rehabilitation allowance, that such allowance will continue in full until 3.10.96 and that after 3.10.96 the Corporation will consider that it has fulfilled its obligation to rehabilitate him back into the workforce and that he has been fully assisted back into the employment of his choice. An ongoing entitlement to payment of costs for medical treatment would continue. The contents of that letter was rightly identified by its author as being a decision in respect of the appellant's entitlements under the Act and the appellant was advised of his rights of review of that decision should he wish to exercise same. It is to be noted that one of the statements contained in the individual rehabilitation plan signed by the appellant states: "Bruce agrees to continue with his lifestyle fashions business. Bruce agrees to cease his weekly compensation on the 3.10.96." 12 Thus I find there can be no doubt that the appellant was aware of what the true nature and consequences of the Corporation's decision of 23rd of July 1996 entailed. It is noted that rights of review of that decision remained until 23rd October 1996. Within that period there was correspondence directly with the appellant and with his solicitors, the tenor of which was the appellant seeking to have the question of compensation reconsidered. In terms of the appellant's solicitor's letter of 17 October 1996 he was contending that the individual rehabilitation plan and the consequences of it could not override the provisions for entitlement to compensation under the Act on an ongoing basis. Thus by the 17th of October 1996 the appellant's legal advisers were aware of the Corporation's position and were still within time to lodge a review against the 23rd July 1996 decision. For whatever reason they chose not to do so. I find that the respondent's letter of 22nd October was a letter intended to be explanatory of the Corporation's position in the light of the demands being made in the letter of 17 October. The statement "I therefore wish to advise that Mr Hull's weekly compensation ceased on 3 October 1996 which was part of the agreed signed rehabilitation contract" is not a decision within the meaning I find is ascribed to that word under s.89 of the Act. That statement does not purport to be the judgment or conclusion or resolution of the issue, that was reached in July 1996. At very most it was simply declaratory of the Corporation's position in the light of its earlier decision. The contents of the letter did not affect the status or entitlements of the claimant under the Act, it was purely explanatory and advisory of the position which had been determined, or the conclusion which had been reached, in July 1996. 13 There can only be one decision at any time on any particular claim or entitlement under the Act. When that decision has been made, that is it until such time as it may be revoked, revised or amended whereupon it becomes a new decision or as the Corporation is known to describe it, a "fresh" decision. This situation is specifically provided for under s.67A which gives the Corporation power to revise any decision and it may amend or revoke or substitute a new decision. Subsection 3 states "every amendment to a decision or substituted decision shall constitute a fresh decision of the Corporation for the purposes of this Act." It would have been open to the Corporation if it had considered it appropriate, to make a decision pursuant to s.67A and reintroduce weekly compensation for the appellant. Such a decision would undoubtedly be a fresh decision with review rights. In contrast to that the mere reassertion of the status quo cannot be said to be a fresh decision, either under s.67A or under general principles, affecting rights within the meaning of s.89. Accordingly then I rule that the Corporation's letter of 22nd October 1996 was not a decision letter within the meaning of s.89 of the Act and that the appellant had no rights of review under s.89 arising out of that letter. In so far as the appellant's submissions regarding s.66 of the Act are concerned, I rule that the purported request made by the appellant does not come within the formalities of s.66 and that provision has no application to informal requests of the appellant or his counsel. Section 66 only applies to formal claims made in the first instance are concerned and where a decision on same has not been made within one month. I rule that s.66 has no applicability to the factual circumstances of this case. 14 For the foregoing reasons this appeal is dismissed. DATED at WELLINGTON this day of December 1997 Beaks M J Beattie District Court Judge Hull.doc KD