Shadbolt v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 111 /96 AT AUCKLAND UNDER THE Accident Rehabilitation and Compensation Insurance Act 1992 47 / 96 060s AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN CH SHADBOLT of Auckland APPELLANT (DCA NO. 91/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act RESPONDENT Date of Hearing: 24 July 1996 Date of Decision: 11 October 1996 K H Goddard as Counsel for Appellant R F Irving as Counsel for Respondent DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is whether the appellant is entitled to receive back dated payment of complex personal injury attendant care from 1 July 1994, being the date the date the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Regulations 1994 ("CPI Regulations") came into force. 2 The Appellant is severely disabled requiring 24 hour care following a serious head injury on 15 September 1993 when he was struck by a motor vehicle. The Appellant has been a patient of Mercy Parklands Hospital and Retirement Home since 12 November 1993. Under the Accident Rehabilitation and Compensation Insurance (Social Rehabilitation - Attendant Care) Regulations 1993 the Appellant's entitlement to attendant care payments was $480 per week, payable from 18 November 1994. During that period however, the Appellant's hospital costs were approximately $1000 per week. The Appellant applied to review the Respondent's decision relating to the assessment of attendant care payment. The application for review was heard on 5 April 1994. In the course of the hearing, the Review Officer said that new regulations increasing the attendant care entitlement in cases of complex personal injury were to be issued. The review hearing was adjourned pending the issuing of these regulations. The CPI regulations came into force on 1 July 1994. The Appellant's family learnt of their existence on 6 July 1994 and contacted the Review Officer by telephone, to request that the adjourned hearing be resumed. This request was confirmed by the Appellant's family in a letter dated 22 July 1994. Subsequently, the Appellant's 3 family formally requested the Review Officer review their father's case under the new CPI regulations in a letter dated 12 August 1994. The Review Officer's decision was issued on 25 September 1994. In his decision, the Review Officer stated that the only issue before him was to decide whether or not the decision of 25 November 1993 to pay attendant care at $480 per weeks was correct when it was made. He concluded that it was. Following this decision, the Appellant's family formally applied for payment of an increased attendant care allowance under the CPI regulations on 7 September 1994. This application was granted by the Respondent. As a result the Appellant was assessed under the CPI regulations as being entitled to $1036 per week. Payments were back dated to the date of formal application, being 7 September 1994. A review was then sought by the Appellant's family requesting that attendant care payments under the CPI regulations be backdated to 1 July 1994, being the date at which the CPI regulations came into force on the following grounds: "The increase in attendant care should be back dated to at least 1 July 1994, as we were waiting on Mr Smith the Review Officer to notify us of these new regulations from 5 April 1994, when he adjourned his decision until 25 August 1994." 4 The Review Officer held that the earlier Review Officer's decision in respect of attendant care, was correct, as he was unable to directly make a decision on the CPI regulations. At the time that the review hearing was held he had had no authority to consider the case under the CPI regulations. Furthermore, the Review Officer found there was nothing on the file to suggest that an application in writing for an assessment under the CPI regulations was made on or about 1 July 1994. The Review Officer took the view that under the CPI regulations the first written notification was the Appellant's family's letter of 12 August 1994 and that 12 August 1994 was the date when an application for the Appellant to be assessed under the CPI regulations was first made to the Respondent. On the basis of this decision, payment of the attendant care entitlement under the CPI regulations was back dated to 12 August 1994. The period for which the Appellant now claims the attendant care entitlement is from 1 July 1994 to 12 August 1994. Counsel for the Appellant submitted that the Appellant's son became aware of the regulations on 6 July 1994. As a result he immediately telephoned the Review Officer requesting that the adjourned hearing be resumed. The Review Officer told him that he was not aware of the new regulations and after he had looked into the matter, he would telephone the Appellant's son back. When the Appellant's son did not hear back from the Review Officer he wrote the letter of 22 July 1994. Counsel for the Appellant submitted that the Appellant through his son had done everything that "a 5 prudent and indeed diligent layman could have done to obtain coverage from the earliest possible date under the CPI regulations". It was further submitted on behalf of the Appellant, that the Respondent has been illogical in its choice of a date from which the payments under those regulations would run. The Respondent had initially agreed to back date payments to 7 December 1994 and then subsequently to 12 August 1994. Counsel for the Appellant conceded that it could have equally have back dated payments to 22 July 1994 as each of those dates are dates of letters written by the Appellant's son to the Respondent concerning the CPI regulations. Counsel for the Respondent submitted that the Appellant must show on the balance of probabilities an application for assessment to determined the attendant care entitlement under the CPI regulations was made on 1 July 1994. It was submitted that there was no evidence of any such application. I accept the Respondent's submission, that there is no written evidence of any undertaking given at the adjourned review hearing of 5 April 1994 to the Appellant's family that they would be notified once CPI regulations had passed into legislation. Page 14 of the transcript of the Review Hearing records: "Mr Smith Well once its, once the new (Review Officer) regulations are issued then they'll no doubt attract some publicity. 6 Mr Shadbolt: Yes, yeah, Do we phone up this (Jnr) officer and ask for... Mr Smith: You can contact, yeah you can contact the Review Officer and we'll set it down again if we need to, it may not be necessary for us to meet again but ... you know we would be covering the same ground but so a letter will be the best way, a letter to me saying you know "Dear Mr Smith, about the regulations published yesterday are now available we would like to take them into consideration." It was further contended on behalf of the Respondent that there was no onus upon the Respondent to notify the Appellant of the issuing of the regulations, nor to activate a claim on the Appellant's behalf in the circumstances. The Appellant's family telephoned the Review Officer on or about 6 July 1994 and then wrote to him on 22 July 1994. The letter of 22 July 1994 states: "Further to our meeting of 5 April 1994, at which we agreed to adjourn the meeting until such time that the proposed new ACC regulations were released, we wish to bring to your attention that these regulations were passed to parliament on 7 June 1994 and came into effect on 1 July 1994. Accordingly, could you please for this review meeting to recommence at a mutually convenient time." 7 On receipt of this letter, the Review Officer contacted the Appellant's family and advised them that their best course of action would be to formally request a review of the Appellant's case in terms of the CPI regulations. The Appellant's family then made a request in the letter dated 12 August 1994 as follows: "Further to our telephone discussion last week, could you please arrange to review our father's case, under the new regulations called the Accident Rehabilitation and Compensation Insurance (Complex Personal Injury) Interim Regulations 1994)..." This letter was accepted by the Review Officer at the last review hearing as to being equivalent to an application for a consideration under the CPI regulations. It was submitted on behalf of the Respondent that the review hearing which took place on 5 April 1994 and was adjourned, cannot be treated as an application for consideration as the CPI regulations were not in existence at that time. It was further submitted that neither the discussions nor the letter of 22 July 1994 can be considered to be an application for consideration. The onus was on the Appellant's family to activate a claim under the CPI regulations. The earliest that they did that was on 12 August 1994. 8 I disagree. In my view, the discussions and the letter of 22 July 1994 are equivalent to an application for a consideration under the CPI regulations. I do not see what more the Appellant's family could have done on his behalf. The appeal is allowed. The Appellant is entitled to costs. If these cannot be agreed, then leave is granted to either party to apply in writing for costs to be determined. . . . . . . . . . . .. ..................... Jane H. Lovell-Smith District Court Judge