Tukapua v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 2 6 /97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN DAVID WATKINS TUKAPUA of Levin Appellant (Appeal No. DCA 185/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr A R V Rowlett, advocate for the appellant and from Ms P J Zumbach, counsel for the respondent with a request that I issue a decision on the papers. The appellant lodged a claim with the respondent on 23 June 1992 in respect of injuries sustained to his neck, shoulder, chest, elbow and back as a result of an accident which occurred on 2 August 1990. On 17 July 1992 the respondent accepted the claim as a late claim. In its letter to the appellant on 16 July 1992 the respondent advised the appellant that in addition to cover being granted, his name had been placed on the available specialist schedule in order that an assessment of permanent damage could be made. On 21 August the respondent notified the appellant that his name had been entered on a specialist list for the purpose of the assessment and that he would be notified when an appointment had been made although it was accepted that there would be a delay of approximately 18 months. That letter concluded by stating "it is essential to 2 advise us should you have a change of address as your confirmation of attendance will be required once an appointment has been secured. If we are unable to obtain your confirmation the appointment will be cancelled." On 19 February 1993 the respondent notified the appellant by letter of his entitlement to receive either a lump sum or an independence allowance and that he was required to give his written agreement as to which assessment was to be made. The appellant completed the election to receive lump sum compensation, that form being dated 1 March 1993. On 26 October 1993 the respondent received a report from Mr A R Cockerell, the specialist who had examined the appellant on 25 August 1993. Mr Cockerell's opinion was that the appellant did not have a permanent disability which qualified for an award under section 78 but that he might have a claim for a small award under section 79. Mr Cockerell's report was accompanied by an account from Mid Central Health Limited in regard to the appellant whose address was stated then to be 17 Freyberg Street, Levin as opposed to 8 Rata Street, Levin which had been his address for all previous correspondence. However, the respondent had had no notification from the appellant of any change of address and on 8 November 1993 the respondent wrote to him at the Rata Street address requesting submissions in relation to a lump sum award. The appellant did not respond to the letter of 8 November nor to a second request on 24 December 1993 and in May 1994 it closed its file. In October 1995 the appellant's advocate submitted an Authority to Act signed by the appellant whose address was then stated to be 669 Queen Street, Levin. Mr Rowlett at that time enquired as to the appellant's entitlement to lump sum compensation. On 15 November 1996 the respondent notified Mr Rowlett that the application for lump sum compensation was declined under section 147(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 as no lump sum compensation payment was made prior to 30 June 1995. The letter acknowledged that the appellant had been assessed by a specialist but that he had failed to answer numerous requests for submissions. The appellant applied for a review of that decision. Mr Rowlett appeared at the review hearing at which he submitted that he should take proceedings by way of "wrongful action" in that the respondent had failed in its duty of care to the appellant by closing its file before making an assessment under either section 78 or section 79. He submitted that the respondent knew the appellant was no longer at the address given and would not have received those letters. He submitted further that the respondent should have been aware that pursuant to the provisions of section 147 (1) the appellant would be likely to lose his entitlement after no assessment or payment was made before 30 June 1995. He submitted that the matter could have been rectified by the respondent making a "nil" assessment in each case which would have preserved his entitlement beyond 30 June 1995. The Review Officer found that the facts were not in dispute and stated that it was his conclusion that section 147 had to be read as a whole and that consequently the application for review was unsuccessful. It is against that decision which the appellant has appealed. 3 Mr Rowlett has submitted: 1. That the Review Officer appeared to have been unaware of the notice of election dated 1 March 1996. 2. That the respondent owed a responsibility to the appellant to ensure that payment was made and that he should not have been penalised by being disentitled through the respondent's failure to make a payment. 3 . That section 147(1) provides for an extension of the time limit for payment where review rights exist and that there is nothing in the wording which would prevent assessment after 30 June 1995 as long as no payment resulted and that a subsequent successful review could then allow payment. 4. He conceded that the appellant was in default through not having notified his change of address and that likewise, the respondent should not have closed its file until the matter had been resolved. Ms Zumbach submitted: 1. That it was reasonable for the respondent to close its file after no response had been made by the appellant to the two requests for submissions. 2. That the appellant was aware of his obligation to notify any change of address. 3. That the fact that the account from Mid Central Health indicated another address was not sufficient to put the respondent on notice and that a formal notification of the change of address should be provided by the appellant himself. 4. That the appellant had attended for his permanent impairment assessment and it would have been reasonable to anticipate that he would have kept in touch with the respondent to ascertain the position of lump sum awards after that assessment had been made. 5. That pursuant to section 147(1) the appellant was only entitled to payment of a lump sum award "if payment is made on or before the 30th day of June 1995" 6. That the plain wording of section 147(1) must be followed and the appeal must be dismissed 7. That any "wrongful action" on behalf of the respondent is denied and that the respondent acted reasonable at all times. 4 Section 147(1) states: "(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 received that compensation and makes written application for that compensation before the Ist 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." While the appellant did elect to accept a lump sum award under sections 78 and 79 of the 1982 Act by his notice of election dated 1 March 1993, he otherwise failed in his obligations to the respondent. Proper notice was given to him of the requirement to attend for an assessment with the specialist and the need to promptly notify any change of address. As it transpired, he did attend for assessment but thereafter failed to communicate with the respondent or to answer any correspondence or to notify a change of address. I consider that the respondent acted reasonably in the efforts it made to communicate with the appellant after the assessment had been received from Mr Cockerell. I do not accept Mr Rowlett's submission that the respondent could have made a 'nil' assessment in respect of each section in order to preserve the appellant's entitlement. There was no obligation on the respondent to take that step nor was it under any duty to make an assessment until it had received the appellant's submissions so that it could assess the losses he had sustained. The appellant failed to provide submissions through his own default and the matter lapsed and the file was closed by the respondent. Section 147(1) is unambiguous and provides that no lump sum award can be made unless the appellant "makes written application for that compensation before the Ist day of April 1993 [when} that person shall be entitled to payment under those sections if payment is made on or before the 30th day of June 1995" (emphasis mine). It is quite clear that no payment was made before 30 June 1995 and accordingly the appeal is dismissed. DATED at WELLINGTON this 21 4 day of february 1997 Quinnadula A W Middleton District Court Judge dc185-96.doc (nr)