McNicholl v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. $1 /95 HELD AT CHRISTCHURCH 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 88/93 0363. BETWEEN DIANE WINIFRED McNICHOLL Appellant (Appeal No. DCA 105/93) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 3rd day of April 1995 No appearance for appellant Ms J W Saxton for respondent DECISION OF JUDGE D A ONGLEY I apologise for the delay in delivering this decision. It is a case where there is rather a foregone conclusion because of the effect of a series of appeal decisions in this Court which are clearly against the appellant. Mrs McNicholl injured her left knee in a fall on 17 March 1979. On 29 October 1992 her general practitioner notified the Corporation that she was ready for assessment for permanent disability and on 8 February 1993 the Corporation informed her that it was processing her claim for lump sum compensation. The Corporation sent her a covering letter with advice that she was required to make a written election by 31 March 1993 if she wished to recieve lump sum compensation instead of a dependency allowance. Mrs McNicholl sent in the election notice but it - 2 - did not reach the Corporation until 13 May 1993. The reason for the delay was apparently just forgetfulness. Mrs McNicholl intended to send the election form to the Corporation in time but she overlooked it. The requirement of making a written election, even when an application has already been made for lump sum compensation, has been decided and affirmed in a number of cases under the 1992 Act including Black (66/94), Demus (71/94) and Schuster (93/94). The relevant parts of's 147 are as follows: 147. Compensation for non-economic loss - (1) Where any person had an entitlement to compensation under ... 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 ... (2) Where any person has suffered personal injury by accident to which the Accident Compensation Act 1972 or the Accident Compensation Act 1982 applies, and - (a) That person has 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 in respect of that personal injury, but has not received any payment under any of those sections in respect of that personal injury; and (b) That person would have an entitlement to an independence allowance under this Act if the personal injury had been suffered on the Ist day of July 1992 - that person shall be entitled to elect in writing, not later than the 31st day of March 1993, to receive either his or her entitlement under ... section 78 or section 79 of the Accident Compensation Act 1982, or an independence allowance under and subject to the conditions of this Act, but not both. (3) Subject to section 148 of this Act, if - (a) No payment has been made in respect of personal injury by accident under ... section 78 or section 79 of the Accident Compensation Act 1982; and (b) No payment is made under subsection (1) of this section; and (c) No election is made under subsection (2) of this section - the person shall be deemed to have elected to receive an independence allowance under and subject to the condition of section 54 of this Act as if the personal injury by accident was personal injury that had been suffered on the Ist day of July 1992. Section 147 requires both an application for lump sum compensation and an election to recieve that compensation instead of an independence allowance. The Corporation had written to the appellant on 8 February 1993 notifying her that it was processing her permanent disability application and the respondent has not argued that no application had been made for lump sum compensation. In some cases the application for lump sum compensation is capable of also amounting to an election not to receive a dependency allowance. In this case however the application consisted only of a C15 medical certificate that the appellant was ready for assessment for permanent disability. It is not capable of being regarded as containing an election to receive lump sum compensation instead of a disability - 3 - allowance. This appellant is unfortunately barred from receiving lump sum compensation because she did not make the required election by 31 March 1993 and she did not otherwise qualify by having received any payment described in subsection (3). The Review Officer expressed sympathy with the reasons for her forgetfulness that Mrs McNicholl explained at the review hearing. The reasons given by the Review Officer were correct and the appeal is therefore dismissed. DATED at WELLINGTON this 2 + day of July 1995 D A Ongley District Court Judge