D T King & Co Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 237/98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN DT KING & CO LTD of Invercargill Appellant (Appeal No. DCA 304/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at INVERCAGILL on the 6th day of November 1998 APPEARANCE/COUNSEL J G French for appellant A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the decision of the review officer which confirmed the attribution of claim costs of $24,295 paid to Murch (the worker) was correct. The issue arose when the respondent sent to the appellant an employer claims history notification (ECHN) which indicated that the form had been produced on 30 September 1997 and purported to represent the respondent's record of claim costs for the year ended 31 March 1997 which would be used in completing the assessment of the appellant's experience rating calculation. When the ECHN was received the 2 appellant wrote to the respondent on 14 October 1997 stating that it had received its experience rating for the year which included the amount of $24,295 attributable to the worker. The letter suggested that the appellant was entitled to the discretion provided by the "g" factor. A letter from the respondent on 12 February 1998 notified the appellant that the respondent considered that the claim costs should remain on the file and attributed to the appellant. It also notified the appellant that if it was not satisfied with that decision it could apply for a review which it did. As a result the review officer concluded that the costs paid in respect of the worker should be attributed to the appellant. It is against that decision which the appellant now appeals. Mr French submitted that the appellant was entitled to the benefit of the "g" factor because the appellant had notified the respondent of its objection prior to the amending regulation which took away the benefit of the "g" factor. Mr Barnett submitted that the whole exercise has been misconceived. He submitted that the ECHN was not a decision of the respondent which was capable of being reviewed but was only a record of the appellant's claims history for the year in question and amounted to nothing more than a notification of that history. He submitted that in fact the appellant's experience rating assessment was not issued until August 1998 and that that therefore was the only decision which could be the subject of a review. Mr Barnett submitted that the issue before the Court was considered by Judge Beattie in Cadbury Confection Ltd v ARCIC (Decision 207/98). In his decision Judge Beattie had to consider whether an ECHN amounted to a determination of employer's basic premium. He stated: "The ECHN does not determine that the employer's basic premium has been adjusted, it merely advises the employer what information the respondent considers is relevant for calculating any adjustments. It is noted that the document itself provides the employer with an opportunity to question the information and to make comments and to indicate where there is any disagreement with the information contained in it. I am satisfied that such a document cannot be regarded as being a document which contains a decision which is capable of review pursuant to section 89 of the Act. In that regard I adopt and affirm the decision made in Hull (Decision 249/97). That notice could not be said to be one which determined the employer's liability for premium. It did not conclude or finalise the matter, it was merely part of a procedure to clarify what would ultimately be the criteria upon which a decision as to premium loading or discount would be made." I agree with Mr Barnett's submission that the whole issue has been misconceived. I respectfully adopt Judge Beattie's finding that an ECHN is nothing more than a notification to the appellant of the information held on its file which may be considered when the appellant issues its experience rating assessment at the end of the particular year. The ECHN purports to be nothing more than that and invites the 3 appellant to comment in case some of the details are not correct. It is however not an assessment for the purposes of experience rating and was therefore not a decision upon which the appellant could apply for a review. Furthermore, I agree with Mr Barnett that the letter of 12 February 1998 did not amount to a decision as to a premium payable and could not therefore be the subject of a review. Accordingly, it follows that the appeal must be dismissed. DATED at WELLINGTON this |7th day of November 1998 A W Middleton District Court Judge Dca30498.doc(rd)