Te Au v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 244 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 DEAN TIEMI TE AU of Porirua Appellant (Appeal No. DCA 178/97 ACA 39/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 11th day of November 1997 APPEARANCES Appellant in person J D Palmer for respondent DECISION OF JUDGE A W MIDDLETON This appeal is in respect of two claims: one, being under the Accident Compensation Act 1982 which has the file reference ACA 39/97; and the second, being under the Accident Rehabilitation and Compensation Insurance Act 1992 which has the file reference DCA 178/97. The background to both appeals is that the appellant suffered shoulder and chest injuries in a motor vehicle accident on 2 August 1998. As a result of that accident he remained in hospital for some time. He was unemployed at the time of the accident. He lodged a claim for cover under the 1982 Act and the medical costs were paid by 2 the respondent. It appears that no further claims for compensation were made at that time. It appears that between 1990 and 1992 the appellant spent some time in hospital and that when he was not incapacitated, he stayed with friends or relatives. When he was not in hospital, his then 7 year old son had been cared for by his extended family and relatives. On 12 September 1992 the appellant was assaulted and suffered a serious back injury which has left him with a permanent disability. At the time of that accident he was unemployed. In April 1993 the appellant lodged a claim for cover in respect of the injury suffered as a result of the accident in September 1992. In that claim the appellant indicated that he had delayed lodging the claim because he had considered the injuries suffered were reaggravation of the same injuries he suffered in the motor vehicle accident in August 1990 The file indicates that as a result of publicity in respect of the need to elect to seek lump sum payments under the 1982 Act, the appellant called at his local branch of the respondent's office to make the necessary election. It appears that on the day he called he was prevented from doing this because the staff were then busy and he returned to the office the following day. The file record indicates that while his claim had been located on the office system when he first called it had been wiped off the system between that visit and his visit the following day. Inquiries were then made of his General Practitioner as a result of which it was confirmed that he had in fact received treatment in 1990 as a result of the accident and that it had been accepted by the respondent. However, this process took a considerable time and a new claim register was not created until 1 June 1995. The appellant then claimed lump sum awards in respect of the 1990 accident and for child care, attendant care and home help and for weekly compensation. He made similar claims in respect of the 1992 accident. After a considerable period the respondent accepted an entitlement to lump sum awards in respect of the 1990 accident and these were duly paid. However, the claims for earnings related compensation, home help, child care and attendant care were declined because the expenses and losses had not been properly identified The appellant applied for a review of that decision as a result of which a decision was issued in which the Review Officer which failed to distinguish between the claims which fell within the ambit of the 1982 Act as against the claims which came within the ambit of the 1992 Act. The appellant appealed against that decision and Judge Ongley allowed the appeal and referred the issues back for a new review hearing to be undertaken. The Review Officer confirmed the respondent's primary decisions that the appellant was not entitled to payment of earnings related compensation under the 1982 Act and was not entitled to reimbursement in respect of home help, child care and attendant care because the claims did not properly identify the exact details of the expenses incurred by the appellant. In respect of the similar claims under the 1992 Act the Review Officer, again confirmed the respondent's primary decision. It is against those decisions which the appellant now appeals. 3 The evidence on the file clearly establishes that the appellant has been very badly treated by the system. Had his position been identified when he first called on the respondent regarding lump sum elections perhaps this appeal would have been unnecessary but it took some years before his claim was accepted although his entitlement flowed from the accident in August 1990. The intervening times however had prevented his making all the necessary claims which would have been to his advantage. However, the respondent did recognise that because of the flaw in its system the appellant was entitled to lump sum awards in respect of the accident in August 1990 and also that he is now entitled to an independence allowance under the 1992 Act. The issues on appeal therefore are whether he is entitled to receive any of the other benefits for which he has claimed. I will first deal with the position of the claims under the 1982 Act. 1. Earnings Related Compensation As I explained to the appellant at the appeal hearing, the evidence was that at the time of that accident he had not been in employment for some time and section 53 of the Act provides that earnings related compensation is to be assessed as an amount which, in the opinion of the respondent, would, at the time of the accident, fairly and reasonably represent his average weekly earnings. I have to agree with the Review Officer that as the appellant had no earnings at that time and had not been in employment for some time he had no entitlement to earnings related compensation under the 1982 Act. 2. Attendant Care The appellant had claimed for payment for attendant care between 20 August 1990 and 31 January 1992. This apparently was required to assist him in attending his doctor and personal care, including massaging and assistance in restoring his physical well-being. The issue is covered by section 80(2)(b) of the Act which provides the respondent with a discretion to pay for any reasonable expense or loss incurred by a person giving help to the appellant while incapacitated. The requirements are that there should be sufficient proof of the expenses incurred so as to make them identifiable. There appears to be nothing in the medical notes which indicates that the appellant required such attendant care and the only evidence is his own evidence to the Review Officer. While the appellant gave this evidence, the Review Officer had noted a reluctance on his part to explain visits to hospital during 1991 which the appellant declined to answer. This led the Review officer to doubt the appellant's credibility. At the appeal hearing, the appellant submitted that he had a personal physical problem unrelated to the accident which he considered was personal to him and something he did not wish to discuss hence his reluctance to answer some of the Review Officer's questions. I agree with the finding of the Review Officer that, again the claim did not provide sufficient evidence which would have 4 enabled the respondent to identify and quantify the expenses incurred by those who provided the appellant attendant care. 3. Child Care This issue is covered by section 80(2)(a) of the Act and the claim is made on the basis that during the period between August 1990 and January 1992, when he was incapacitated, the appellant had to arrange for assistance in caring for his then 7 year old son. Again there are no details of the times spent by the persons providing the care or the actual outlay incurred. Again the provision is discretionary as so far as the respondent is concerned and I agree that on the basis on which the claim was lodged it was not possible for the respondent to ascertain an identifiable figure for that claim. 4. Home Help Compensation The appellant claimed for home help provided by Mrs K Morgan between 20 September 1992 and 24 May 1993. Apparently Mrs Morgan worked between 4.30 pm and 7.30 each week day and between 8.00 am and 12.00 pm each weekend. As the home help claim is made for a period commencing 20 September 1992, I agree with the finding of the Review Officer that this must come within the ambit of the 1992 Act. In respect of the claims arising out of the 1992 Act, the following arises: 1. Weekly Earnings The appellant confirmed at the review hearing that he had not been employed at the time of his accident in September 1992. It appears from the decision of the Review Officer that between 11 February 1992 and 2 April 1992 the appellant had been working in a seasonal job but thereafter had remained unemployed. Section 40 of the 1992 Act provides that, to qualify for a payment of weekly compensation, the appellant must have been an earner immediately before the commencement of the incapacity and during the twelve months immediately preceding the incapacity, had earnings as an employee. I agree with the finding of the Review Officer as the appellant was not employed at the time of the accident, he is not entitled to weekly earnings. 2. Attendant Care The appellant made a claim for attendant care for the period between 30 June 1995 and 22 September 1995. He told the Review Officer that he did not know how much should be paid to his caregivers but considered that some compensation should be made. Section 64 of the 1992 Act covers the question of the provision of attendant care which comes within the objectives of social 5 rehabilitation. The respondent is permitted to assist with the provision of attendant care but there is an obligation on the appellant under section 64 to provide a certificate from a registered health professional as to the requirements and the home help regulations provide that the date on which such payments are to commence is the date upon which written application is made. The appellant made his application for attendant care by letters dated 3 February 1997 and 10 February 1997, neither of which provided the relevant information which would have been necessary for the respondent to make the appropriate decision. I agree therefore with the decision of the Review Officer that the appellant has not satisfied the requirements of the Act in so far as attendant cared is concerned. 3. Child Care The appellant claims an entitlement to child care backdated to the date of the accident. The evidence indicated that while the accident occurred on 12 September 1992, the appellant's partner moved back into his home on 20 September 1992. It appears from the evidence at the review hearing that the appellant and his partner had been separated at the time of the accident but had subsequently reconciled. The respondent had therefore declined the application for child care because the appellant's partner was providing child care. In February 1997 the appellant claimed child care between 20 September 1992 and 30 June 1995 as having been provided by Mrs Morgan but did not provide details of the cost. Again, the child care regulations provide that where there is an entitlement to child care payments, the entitlement flows from the date of the written application. Accordingly, while there is no information of the amount paid to Mrs Morgan, there is certainly no ability to backdate such payments and accordingly the decision of the Review Officer must be upheld. 4. Home Help Compensation By letter dated 10 February 1997 the appellant claimed to have received home help from Mrs K Morgan between 20 September 1992 and 24 May 1993. Again the appellant did not provide details of the amount paid which would have enabled the respondent to quantify the loss. The home help regulations again provide that entitlement flows from the date of the written application. Accordingly I agree that the appellant is not entitled to any backdated claim for home help payments. While the strict application of the legislation results in the appeals under both Acts being unsuccessful, the appellant told me that he had provided the respondent with the names of the persons who had provided him with assistance either by way of home help, attendant care or child care. He explained that he has no knowledge of the law and has difficulty in expressing himself. He thought that by providing details of the persons who had provided him with the relevant assistance, the respondent would have checked with those persons with a view to ascertaining the nature of the help which had been given. I make this observation because the file records indicate numerous payments by the respondent to Mrs Morgan in respect of home help/ attendant care in 1993 and 1994. I am concerned that as a matter of justice, the manner in which this appellant's claim has been treated by the failure initially to locate his file and thereafter the considerable delay in accepting his claim may have prejudiced any further claims which he might have. It does appear that because of the subsequent payments to Mrs Morgan if matters had proceeded as they should have from the appellant's initial claim for cover, the matters which now have come before me, may have been traversed and properly covered at that time. On the evidence it appears that the appellant might well have required the assistance by way of home help and child care which he claimed was necessary but these issues were lost because of the difficulty in establishing his entitlement to cover. Accordingly, I recommend that the respondent give consideration to the payment of some form of ex gratia payment to alleviate some of the expense which the appellant may have incurred but has been unable to adequately identify because of the respondent's actions which delayed acceptance of his original claim. DATED at WELLINGTON this 28 " day of November 1997 A W Middleton District Court Judge dc178-97.doc (nr)