Hart v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. iCc /95" UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN COLIN REGINALD HART of 45 95 / 0 170. Auckland Appellant (Appeal No. DCA 67/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 23rd day of July 1995 APPEARANCES Appellant in person P J Zumbach for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the decision of the respondent issued on 4 November 1994 declining a request to backdate an independence allowance. The facts which give rise to the appeal are that the appellant injured his back in 1985 when he fell on a concrete floor. He fell again on 12 July 1990 when he was working at a service station. Since 1985 he has been in receipt of earnings related compensation although he has had periods back at work. On 30 August 1994 the appellant lodged an application for assessment for an independence allowance. The independence allowance assessment was conducted on 16 September 1994 and resulted in a disability score of 52.4. The injury sustained by the appellant in 1985 had been assessed as leaving him with a 25% permanent impairment for which he received the appropriate award under section 78 of the Accident Compensation Act 1982. Following the accident in July 1990 the appellant was examined by Mr Weeks, an Orthopaedic Surgeon who certified a deterioration of 15% and again the appropriate award was made. On 2 November 1994 the respondent advised the appellant that he was assessed as having a 100% disability and as he had already been compensated for 25%, he was entitled to 75% of the maximum independence allowance being $19.30 per week. This was to begin from 16 September 1994, being the date of his assessment. The notification advised the appellant that the respondent was considering the appellant's request to backdate the independence allowance to 1 July 1992 when the Accident Rehabilitation and Compensation Insurance Act 1992 came into force. It appears from the file that until he saw a television programme in September 1994, the appellant had been unaware of the availability of an independence allowance. On 4 November 1994 the respondent notified the appellant that it would not grant his request to backdate the allowance. The respondent received a report from the appellant's General Practitioner, Dr Woolford dated 1 December 1994 which stated: 'Colin has asked me to provide an updated report on the symptoms related to his back injury. He has as you know, been working on a part time basis, and he is enjoying this and keen for this to continue. He feels that he cannot increase his hours at present, as on the odd occasion that he has filled in for workmates, the increased work load has increased his pain. He is doing well at the job and gaining a lot of satisfaction from this, feeling that he is a better person for it. The pain levels as always have fluctuated. Sometimes worse and sometimes a bit better. This is to be expected. He has had a bad patch recently, and needed extra medication to control the pain, but things seem to be back to his normal chronic pain state now." The appellant contended that he had raised the question of deterioration in 1993 with a member of the respondent's staff. The particular person mentioned by the appellant has no recollection of that matter but about that time, there was a file record of a referral for pain management. On 5 March 1992 Mr Petrie of the Remuera Pain Clinic advised Dr Woolford that he arranged to discuss the appellant's chronic pain situation with him. The appellant gave evidence before the review officer who found that there was no evidence to support the appellant's claim that he had raised the question of deterioration with the Corporation. He accepted that the appellant was suffering considerable pain but the evidence showed that it was of a fluctuating nature and there was no evidence to suggest an increase in the percentage of permanent disability. The review officer concluded that the respondent's policy not to make 3 an assessment of eligibility for an independence allowance until after an application had been made for such an allowance was in accord with the Act and that there was no evidence that the appellant had made any such application until 30 August 1994. The appellant told me that his main complaint was that he should have been advised earlier that he could apply for an independence allowance and that to this extent, the respondent had let him down. The provision of an independence allowance is covered by section 54 which insofar as it relates to this appeal, states: "54. Independence allowance---(1) Subject to this section, every person who has cover under this Act is entitled to receive an independence allowance where the person's personal injury has resulted in a degree of disability of 10 percent or more. 2) Any entitlement to the independence allowance shall commence not earlier than 13 weeks after the date on which the personal injury causing that disability was suffered. (3) The independence allowance shall be paid by the Corporation quarterly in advance, and no action shall be taken to recover any quarterly payment (or part thereof) in respect of any person who dies or whose disability lessens or ceases during that quarter. (4) The amount of the independence allowance shall be $40 [41.08] per week for persons who have a degree of disability of 100 percent, and shall be at such lesser graduated rates as are set by regulations made under this Act in respect of those persons with lesser degrees of disability. (5) The Corporation shall not pay any independence allowance unless the assessment of the degree of disability of the person in respect of whom it is to be paid has been made in accordance with--- (a) Scales prescribed under this Act which may be based on impairment or disability or a combination of impairment and disability; or (b) In the absence of this scales referred to in paragraph (a) of this subsection, the American Medical Association Guides to the Evaluation of Permanent Impairment (Second Edition)--- and any such allowance shall be payable from the date of the assessment or the date determined under subsection (2) of this section, whichever is the later. (14) Where any person who has received a payment under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982 is assess for the purposes of establishing an entitlement to an independence allowance, the person's disability assessed under subsection (5) of this section shall be reduced by the percentage or percentages of permanent loss or impairment of bodily function upon which any payment or payments under section 119 of the Accident Compensation Act 1972 were based." The 1992 Act came into force on 1 July 1992 and repealed the Accident Compensation Act 1982. This had the result that the former lump sums which were available under sections 78 and 79 of the 1982 Act are no longer available and there is now provision for payment of an independence allowance. Section 148 of the 1992 Act makes special provision for people who have received lump sum awards under the 1982 Act before 1 July 1992 and the loss of bodily function has increased thereafter. Such people may apply for an independence allowance but the amount of such an allowance is calculated by deducting from the degree of disability under the section any percentage permanent loss or impairment of bodily function in respect of that personal injury in respect of which payment has already been made under the 1982 Act. As can be seen from section 54, the entitlement to an independence allowance is to commence not earlier than 13 weeks after the date on which the personal injury causing a disability was suffered or the date of the assessment, whichever is the later. This appellant suffered personal injury on 12 July 1990 and the assessment for the independence allowance was made on 16 September 1994. The appellant submitted that as he had mentioned the question of deterioration between February 1992 and 1 July 1992, the respondent's staff should have drawn his attention to the possible entitlement to an independence allowance. The review officer correctly held that he appellant had received a further lump sum for deterioration at the end of May 1991 and it would therefore be unlikely that further deterioration could have been established by February 1992. This is further supported by Dr Woolford's report which indicated that the pain levels fluctuated and there were no demonstrable clinical findings of further abnormality. I therefore accept Ms Zumbach's submission that 16 September 1994, being the date of the assessment is the date on which the appellant's entitlement to an independence allowance must commence. The appellant submitted that it should have been backdated to February 1992 or in the alternative, 1 July 1992. I accept Ms Zumbach's submission that there is nothing on the file to support the claim that the deterioration existed before 1 July 1992. The onus is on the appellant to persuade the Authority on the balance of probabilities that he had made an application for an independence allowance as at 1 July 1992. There is clearly no such evidence available to me and in the circumstances, the respondent was correct to make the payment from the date of assessment as provided in the legislation. The appeal is dismissed. DATED at WELLINGTON this 23 rd day of August 1995 A W Middleton District Court Judge dca67-95.doc (nr)