Crone v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 7 199 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 CORINNE CRONE DCA 166/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 16th day of February 1998 APPEARANCES: Mr M K Headifen counsel for appellant Mr S Condie counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant's Application for Review can include a review of a decision of the Corporation not referred to in that document and first raised by the appellant outside the statutory time limit provided in section 89(5) of the Act. 2 As a supplementary issue in the event that the first issue is answered in the negative, whether there is any power to extend the time for filing an application for review under section 89 of the Act and if so, should such extended time be granted to this appellant. BACKGROUND The appellant, a former nurse, suffered a back injury on 17 June 1992. She was subsequently certified unfit for work and commenced receiving weekly compensation. She also received various other entitlements including Home Help. As the appellant's claim for compensation was made when the 1982 Act was in force she had an entitlement to lump sum compensation. Assessments were carried out to determine the appellant's entitlements under sections 78 and 79 of the 1982 Act and on 25 June 1995 the Corporation advised the appellant that she would receive $10,000 under the provisions of section 79 of the Act but that the Corporation was still awaiting further specialist advice before determining her entitlement under section 78 of the Act. A report was finally forthcoming in March 1996 from Mr Mee, Neurosurgeon, and on the basis of his report the appellant was assessed as having 15% impairment of the whole person and therefore entitled to a lump sum payment under section 78 of the Act based on that 15% impairment. To put the matter in context the appellant had been receiving weekly compensation for a number of years as well as other entitlements and the matter of the lump sum payment was only one of several matters which the Corporation was required to administer, consider and from time to time make decisions upon. 3 From the Corporation's file it seems that the receipt of the Neurosurgeon's report regarding lump sum coincided with the determination of two other matters namely, weekly compensation and Home Help. Thus it was that on 29 April 1996 the Corporation wrote to the appellant regarding those three matters. It wrote three letters all dated 29 April 1996. One letter which could be described as the principal letter, as it referred to all three issues, was accompanied by two further letters. One, a decision under section 78 of the 1982 Act relating to lump sum compensation and the other, a decision relating to the grant to the appellant of the maximum sum allowable for Home Help. In the principal letter the facts of those two decisions is referred to and the appellant was referred to the attached decision letters relating to lump sum and Home Help. The principal letter contained the full advice of the decision made by the Corporation under section 73(1) and (2) of the 1992 Act that her entitlement to weekly compensation would cease two weeks from the date of that letter. That letter gave full reasons why that decision had been reached. Each of the three letters contained advice to the appellant that if she was not satisfied with the decision she should could request a review and that request for review must be received within three months from the date of the letter. On 20 May 1996 the appellant filed an application for review on the form supplied by the Corporation for the purpose. The application form states that it concerned the decision advised to the appellant on 29 April 1996 concerning section 78 of the Act. The appellant ticked the box beside that statement and filled in the date of the decision and the section of the Act. She also ticked another box in that section, that box stating "A delay of more than more than one month in advising me of a decision on my claim for cover or written application for rehabilitation compensation grants or allowances". 4 The form provides a place for giving reasons for the application for review. That part of the form was not completed but there was a separate typed page prepared by the appellant and attached to the printed form setting forth her reasons. That page states as follows: "Reasons For Application For Review That the decision of 15% impairment of the whole person is inaccurate for the following reasons: 1. The decision is based on one visit to Mr Mee on 22 April 1993 (refer attached letter) but has taken until 29 April 1996 for the decision to be received. Since that visit I have had several referrals to Mr M Barnes and continuous consultation with Mr P Rouge for treatment of the back injury. Both feel that the percentage of impairment is greater than 15% so I feel an up to date assessment of impairment is required. 2. The time delay of the decision of review application of 26 June 1995. The decision being received 29 April 1996. 3. That a Neurosurgeon may not be the best judge of back injuries." As an attachment to those reasons was the report of Mr Mee assessing the 15% on which the Corporation's decision was based. That application for review was duly processed and in a letter of 26 June 1996 the Corporation advised that it had given further consideration to her application but that unfortunately the original decision could not be changed administratively. The letter went on to state: "According to your application, you wish to review section 78 of the Accident Compensation Act 1982. This percentage was based on the medical report provided by Mr Mee, the Neurologist. You may wish to obtain an independent report at your own expense to assist with your review. Would you please consider whether you wish to proceed to a formal hearing (explanation attached) or allow the review to be withdrawn. Please indicate your intention by completing and returning the enclosed forms. If no reply is received within 14 days your application will be referred to our review section". The appellant responded to that letter by advising that she wished the matter to proceed to a hearing. She signed and completed the form that had been sent to her for that purpose. It is to be noted that at the same time that this correspondence was passing between the parties, there was also correspondence relating to Home Help and there is a memorandum on the file dated 13 August 1996 which indicated that the appellant rang regarding her review and confirming that she wished to continue and also mentioning that she would like a further Home Help assessment. The Corporation has filed notes that the first time the question of cancellation of weekly compensation is raised is when the appellant's husband telephoned on 20 August 1996 and raised that question. This prompted a letter from the Corporation to the appellant on 29 August 1996 giving a full explanation as to the reasons why that decision was made. At the end of that letter the author, who is described as a senior investigator, states: "ACC tells me that the decision that they issued to you was discussed with you at length but I note that you have not lodged an application for review. Unfortunately it would appear that the time has elapsed for you to review. With respect to your review application this appears to be under section 78 of the Accident Compensation Act 1982." 6 The next relevant matter is a letter of 15 October 1996 from Mr M K Headifen who was now acting for the appellant and who encloses a report from a Dr Hadlow relating to the assessment of disability pursuant to section 78 and who fixes same at 20%. That letter then states: "The other issue which appears the Corporation has not considered which we consider is covered under her application for review is the decisions in respect of section 73(1) and 73(2) and also section 18. The evidence that we will be presenting to the Corporation is the fact that Mrs Crone did not take up the ECG offer of employment at Waitakeri Health on the advice of her doctor that she would not be able to undergo that work. If that is the case it would appear the Corporation's decision is clearly incorrect because it flies in the face of the medical evidence in the medical opinion that was offered to my client." A hearing date for the 27 November 1996 was fixed for the appellant's application for review and Mr Headifen was advised that the only issue the Review Officer had jurisdiction to consider was that relating to section 78 lump sum compensation. On the basis of that advice the hearing of the review was adjourned. Further correspondence took place between the Corporation and counsel and on 14 January 1997 the Corporation formally advised Counsel for the appellant that the appellant's application for review of the decision under section 73 of the 1992 Act was out of time and that this itself was a decision which the appellant was entitled to have reviewed. The appellant duly filed an application for review of that decision and following confirmation of the Corporation's decision by the Review Officer in his decision of 15 April 1997 that matter has now come before this Court on appeal. The issue of the award under section 78 of the 1982 Act was dealt with by a separate decision and the 7 appellant was granted the additional 5% increase in the lump sum award as had been recommended by Mr Hadlow. The relevant provisions of section 89 of the Act are as follows: "89 Application for review - (1) 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. (5) An application pursuant to this section - (a) May be made in the prescribed form within 3 months after the date on which the claimant is entitled to treat the claim in respect of which the review is sought as having been rejected under section66 of this Act; and (6 ) In any other case, an application in the prescribed form may be made within 3 months after the date on which notice in writing has been given on the decision in respect of which the review is sought --- and each such application shall state briefly the grounds on which the application is made. Mr Headifen, counsel for the appellant, submitted that any application for review should receive a wide and liberal interpretation. He further submitted that an applicant was not necessarily bound or limited to the reasons or grounds stated in the application and this therefore enabled a wider scope to be considered. He submitted that there was one decision which had three limbs and he contended that the review must relate to all three parts of the decision. He further submitted that the Court should adopt the principles referred to in this Court's decision in Kroon (Decision Oo 200/97) as that decision related to granting leave to extend the time for appeal from a review decision to this Court. Mr Condie, counsel for respondent, submitted that the form of application for review completed by the appellant clearly indicated that it was in relation to the decision under section 78. Further, the letters of 29 April 1996 clearly indicate there were three separate decisions and the appellant would not be in any doubt that those three decisions related to three separate statutory provisions on three separate and distinct matters. He therefore submitted that, in the light of previous decisions of this Court relating to section 89(5) of the Act, there is no power or discretion given to extend the time for lodging an application for review outside the three months stipulated in that provision. DECISION At the hearing of this appeal it was noted by counsel for the parties that one of the issues which this Court was called upon to consider was whether or not there was any discretion under section 89(5) of the Act to extend the time for the lodging of an application for review outside the three month period stated by that provision. This Court had made its position quite clear in a series of decisions that no such discretion existed or could be inferred from the wording of the provision itself. However, at the time that this hearing took place the Court was aware that leave had been granted to appeal to the High Court in respect one of those decisions and that that appeal was still pending. It was agreed that the decision in this appeal should await the outcome of that High Court appeal. A short time ago the Registry was advised that the appeal to the High Court had been withdrawn. Therefore, a decision can now be made in this appeal with the state of the law on this point being no different now then it was at the time of the hearing. 9 Having examined the actual document of the application for review lodged by the appellant I find that its contents makes it abundantly clear that the appellant is giving notice that she seeks a review of the decision relating to her section 78 lump sum award of compensation. She gives specific reasons for so doing, and in addition, she complains about the length of time that it has taken to come to a decision regarding lump sum. There is nothing in that document which would give any indication that the appellant was dissatisfied with the decision regarding cancellation of weekly compensation or of the assessment and quantum of Home Help. If one looks at the matter from the point of view of the appellant and what she had in her possession when completing that application for review document, it is that she had three letters. The primary letter stating under paragraph No.1 "Section 78 - lump sum award (Accident Compensation Corporation 1982) please find enclosed the decision letter pertaining to the above award. " Then paragraph No.2.0 through to 2.4 related to the decision to cancel under section 73 of the 1992 Act and the reasons therefore. Then paragraph No.3 headed Home Help "Please find attached the decision letter explaining your entitlement to Home Help." As noted, all three letters contained advice of rights of review from each of the three decisions. From that, I find that the appellant could not have been in any doubt that there were three decisions and each of them had rights of review. By reference to subsequent events it can be inferred that the filling in of the application for review was not one where it could be said that the appellant intended to seek review of either or both the other decisions but simply did not express herself properly, as it is noted from subsequent correspondence and discussions between she and the Corporation that the only decision of concern was that of the lump sum figure and the question of cancellation of weekly compensation was not raised. It is to be remembered that at the time when she was having this dialogue with the Corporation her compensation had in fact been cancelled and one would have thought 10 that if it was a matter where she felt unfairly or unjustly treated, she was of course without the benefit of that payment, she would have made her feelings known at that earlier stage. Accordingly then, I can find no justification for giving any latitude by virtue of there being some intention to seek review but it not being clearly expressed. There is a complete absence both in form and in substance to such a suggestion. The Court recognises that in late August the appellant's husband did raise this question of cancellation and it was pointed out that by that stage too much time had elapsed and it was outside the review period. There is no doubt that when the appellant sought legal advice she felt that she had been unfairly treated by the decision to cancel but the plain fact of the matter is that that had not been a feeling which she had expressed in any way which could secure her a right of review. The provisions of section 89 of the Act give a claimant who is dissatisfied with a decision of the Corporation a right of review. The words of section 89 are clear that each separate decision affecting a claim or entitlement under the Act gives a right of review. Under section 89(5)(b) the application is required to state briefly the grounds on which the application is made. The section refers to the application being made on the prescribed form. It is common ground that no form has been prescribed under the Act pursuant to section 167 which gives power to make regulations, including inter alia the prescribing of forms. However, the Corporation have prepared a form which it provides on requests, it doing so pursuant to section 167(3) which states: 'In the absence of any regulations under this section or so far as any such regulations do not extend, the Corporation may determine the forms to be used and the procedures to be followed for the purposes of this Act." 11 The form prescribed by the Corporation is one which requires the applicant to give brief particulars of the grounds and that is what this appellant did on this occasion insofar as the scope of the application for review extended. Whilst it must be accepted that an applicant is not necessarily confined or bound to the grounds which may be contained in an application for review, I consider that to be an entirely separate and distinct issue from whether or not the applicant is confined to the decision for which he/she seeks review to be as stated in that application. To rule that an application for review could be filed in general terms and cover a plethora of decisions that may have been made by the Corporation within the proceeding three months, I find would be unsatisfactory and an applicant would be called upon to particularise the application to establish which decision he/she was seeking to review. In the present case, there was no ambiguity in the document and hence the matter proceeded as might be expected. Accordingly whilst this Court does confirm the decision of Simpson (84/95) that reference in the Act to a prescribed form must be regarded as directory only rather than mandatory, and that provided the expressed intention was clear, a simple letter advising of a wish to review would be sufficient, the principles in Simpson do not in any way dilute the basic principle that it is encumbent on the applicant to clearly express his/her intention to seek a review of a decision and to particularise the decision sought to be reviewed. For the foregoing reasons, therefore, I rule that the appellant's application for review lodged on 22 May 1996 pertained only to the decision of the Corporation fixing her lump sum entitlement at 15% of total pursuant to section 78 of the 1982 Act and that, it is not open to the appellant to seek to include in that application for review a review of an entirely separate and distinct decision of the Corporation when that application is sought to be made outside the three month statutory time period provided for in 12 section 89(5) of the Act. The decision of the Review Officer in holding that the application for review could not be so extended is hereby confirmed. As has been noted earlier in this decision, this Court would accept that the letter of Mr Headifen to the Corporation of 15 October 1996 could be construed as an application to review the Corporation's decision of 29 April 1996 as it related to the decision to cancel the appellant's weekly compensation entitlement pursuant to section 73 of the 1992 Act. That application for review was of course made outside the statutory time limit provided by section 89(5) and this Court in several decisions has ruled as a matter of law that there is no power or authority within section 89 of the Act to extend the time for so lodging an application for review. I adopt and follow the previous decisions of this Court in that regard, principally those of Zehnder (73/95), Campbell (90/96) and Kroon (200/97), and hold that the appellant's request of 15 October 1996 to review the decision of 29 April 1996 cannot be considered as it was made beyond the statutory time limit. This appeal is therefore dismissed. DATED at WELLINGTON this 26th day of January 1999 MJ Beattie District Court Judge Crone.doc (gm)