Cadwallader v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 12/97 HELD AT WELLINGTON 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 ELIZABETH DOREEN CADWALLADER Appellant (Appeal No. DCA 14/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 18th day of November 1996 D M Goodlet for appellant D Tui for respondent DECISION OF JUDGE D A ONGLEY This appeal concerned a question of fact whether a claim for compensation for personal injury by medical misadventure was lodged with the Corporation before Ist October 1992. The appellant claimed that she lodged a claim with the Corporation between 24 September 1992 and 30th December 1992 by sending a letter which was received by the Corporation but later returned to her for further information to be obtained. The allegation of medical misadventure concerned a haemorrhoidectomy operation at Wanganui Hospital on 1st October 1991. Following the operation the claimant had suffered chronic diarrhoea. - 2- The claimant said that she eventually discussed the problem with her doctor, Dr Russell, in about March 1992. She got some written material from Dr Russell but she did not immediately lodge a compensation claim. She said that she got in touch with the Corporation's Wanganui office and she was told to put her claim in writing. She said she saw in the newspaper that claims had to be lodged before October in order to be accepted under the Accident Compensation Act 1992. She wrote a letter to the Corporation and took it to Dr Russell in draft, in order to satisfy herself that she had set out the relevant matters. She attended Dr Russell on 22 September 1992 with the letter. She said that he confirmed that the letter covered the relevant matters. She then prepared a final copy and sent it to the Corporation. She was able to establish with reference to her diary and with written confirmation from Dr Russell that she had indeed seen him with the draft letter on 22 September 1992. She was not able to show by reference to independent evidence that she had sent the letter to the Corporation, and that she had sent it in order to be lodged with the Corporation before Ist October 1992. The appellant was able to produce independent confirmation that she had communicated with the Corporation before 11 November 1992. She had a pro forma letter from the Corporation dated 11 November 1992 requesting a C14 First Medical Certificate, from a doctor who treated her, before the Corporation could consider her claim. She recorded in her diary on 24 September 1992 "Rang Dr. ACC Is okay till Nov 24th. Am writing letter for compensation for injury to my back". At the review hearing she said that she rang ACC on 24th November to see if her medical certificate was due for a back injury which she had suffered a back injury in 1995. An earlier claim for compensation had been accepted in relation to the back injury. She said that her claim letter was posted after 24 September. Some undefined time after that she telephoned the Corporation and she said that the girl in the office suggested that she re-write the letter and that the letter would be sent back to her to re-write it "and put the other problems in". She could not remember exactly what the other problems were at the time. Her evidence at the review hearing was given over two years afterwards. The appellant said that her letter was in fact sent back to her by the Corporation and that it had on it a date receipt stamp. She said that she cut the receipt stamp off the letter and attached it to another letter which she then posted to the Corporation. That other letter bears a Corporation receipt stamp of 4th December 1992, and the Corporation took the view that no claim for medical misadventure had been lodged before that date. The review officer dealt with the evidence as follows: "I do not doubt that the applicant had discussions with the Corporation in regards to the problems she had been suffering from August 1991 or that in all probability she mailed a letter to the Corporation about these prior to 1 October 1992. However there is no conclusive evidence that prior to 1 October 1992 a claim providing sufficient information to enable a just decision to be made in respect of personal injury by accident, had been received. - 3 - It is obvious to me that initially, insufficient information was provided to process a claim and this is supported by the Corporation's request of 11 November 1992 seeking further documentation for lodgement of a claim. It also does seem to me that some of the information given by the applicant prior to this may have tended to indicate that the problems being suffered related to an earlier back injury for which compensation was being received. Mrs Cadwallader's letter received by the Corporation on 4 December 1992 appears to be clarifying for what she wishes to claim." The review officer therefore made a finding of fact that in all probability the claimant mailed a letter to the Corporation before 1st October 1992 and in relation to the symptoms of chronic diarrhoea. She then went on to say: "Section 93 of the Accident Compensation Act 1982 sets out the legislative requirements for notification of accidents and Section 96 details the provisions relating to lodgement of claims. In practical terms the basic requirements for lodging a claim prior to 1 October 1992 were met, by provision of a M46 Claim for Cover and Treatment Expenses form which requires details of the injury and how it was caused from the injured person and diagnosis and details of the injury from the doctor providing the treatment. This form could have been completed at anytime prior to 1 October 1992 when the applicant was discussing lodging of the claim with her doctor." The review decision therefore turned on the insufficiency of information contained in any letter to the Corporation before 4th December 1992. The review officer's reference to the particulars contained on an M46 Claim form indicate that she considered the appellant had failed to provide those details, including the particulars of the accident and the injury, and a supporting opinion from a medical practitioner. The review officer had found that there was no conclusive evidence that sufficient information had been provided before 1st October 1992, that is to say, information to enable a decision to be made in respect of personal injury by accident. The decision on review does not deal with the question whether the appellant did provide the basic elements of her claim, that is to say that she alleged personal injury by accident at the time of her haemorrhoid operation on 1st August 1991. It is not necessary to consider, in this case, what the minimum requirements for lodgement of a claim would have been, but it may be noted that s 96 of the Accident Compensation Act 1982 does not prescribe a form of application and it does appear that a completed M46 form is not necessary. The eventual outcome was that the claim was considered as a medical misadventure claim under the 1992 Act and referred to the Medical Misadventure Committee for advice. The claim was rejected on grounds that need not be referred to in this decision, but suffice to say that the outcome might be different if the claim was considered under the Accident Compensation Act 1982. On the hearing of the appeal counsel for the respondent did not pursue the narrow interpretation of the requirements of a valid claim that were adopted by the review officer. Instead, Mr Tui submitted that whatever communication there had been between the appellant and the Corporation before 11th November 1992, there was insufficient evidence of a claim being physically lodged with the Corporation before Ist October 1992. - 4 - Reference was made to Letham 9/96 in which Middleton DCJ held that actual receipt by the Corporation was a necessary element of lodging a claim. In that case, the appellant had posted the claim with an incorrect address and there was insufficient evidence to suppose that the claim had actually reached the Corporation. The appellant in this case has to establish on the balance of probabilities that her letter constituted a claim, and that it was posted in time to be received by the Corporation before 1st October 1992. Mr Tui submitted that there was no persuasive evidence to establish those facts, and that the correctness of the appellant's evidence rested on assertions which could not be easily accepted. If the appellant's evidence is correct, then a member of the Corporation's staff at Wanganui would have had to take an unusual step of returning the appellant's letter which bore a Corporation receipt stamp and which should have been placed on a permanent file, and then the appellant must have acted in a rather inexplicable way in cutting the receipt stamp off the letter and returning it to the Corporation to demonstrate the receipt date. The appellant herself acknowledged that that had been a very silly thing to do. Her second letter did not have any marks consistent with anything being stapled to it and there is no reason why any attachment should have been removed. She said that there was an enclosure with it, being a copy of Dr Russell's report of 13 March 1992, but no such report appears on the Corporation's file. On the appeal therefore, the respondent does not support the review officer's finding that the appellant probably mailed a letter to the Corporation before 1st October 1992 about the problems she had been suffering from August 1991. The Review finding includes an acceptance of the appellant's credibility about the posting of the letter, but it does not deal with the crucial questions of fact. On appeal, this Court does not have the advantage of evaluating the credibility of the appellant from seeing and hearing her give her evidence. The transcript must, in fairness, be treated as the appellant's credible account of what she recalls. The Court is called upon to decide a question of fact, on the basis of the recorded evidence and with the assistance of the review officer's findings. The matter is quite finely balanced. The appellant was slow in doing anything about a claim for personal injury in relation to the symptoms which persisted after the operation in August 1991. She said that she was indecisive but her family encouraged her to make a claim. Despite that, there is acceptable evidence that she prepared a draft letter concerning those very matters. I have to conclude that the referee was wrong in finding that the letter in question did not amount to a claim. It seems inescapable that, given the concerns she was addressing, the letter would have referred to complications relating to the August 1991 operation, and, in particular, the condition of chronic diarrhoea which she claimed to be the main symptom of the injury resulting from the operation. Whether or not there was medical misadventure was not a matter that she was obliged to establish in her claim form, but it was a matter that the Corporation would make the subject of appropriate inquiries. It has to be accepted that she copied out the draft and posted the letter after 24th September 1992. She knew that there was a time requirement because she had read newspaper advertisements. The review officer accepted that a letter was sent and that the Corporation's request of 11th November 1992 had something to do with the inadequacy of the letter. That seems to overcome the objection that a Corporation staff member would have been unlikely to return the letter. It must follow from the review officer's finding that the Corporation had a letter which it no longer has. The crucial question is the date of posting of the letter. The date of posting was not necessarily as late as November. It seems that the reason the Corporation responded in November was because the appellant contacted them again, not because the Corporation had just received the letter. The date of posting could have been at any time around late September or during October. The burden of proof lies with the appellant. She is unable to say when she posted the letter. In her evidence before the review officer she was not able to be sure that the letter was posted in time to be received by the Corporation before Ist October 1992. The Court cannot speculate upon that in the absence of any evidence from which proper inferences can be drawn. It is equally possible that the letter was posted too late to reach the Corporation by 1st October 1992. Counsel for the appellant has submitted that such a conclusion contains the injustice that evidence of the date of receipt would be available if the Corporation had acted correctly and opened a file to deal with the claim. Instead, the letter with its receipt date stamp was apparently returned to the appellant and she, through inadvertente, destroyed the only evidence she had that the letter had been received in due time. She could not recall what date stamp did appear on the letter, even though she considered it important enough, as she said in her evidence, to detach it in order to return it to the Corporation with her next letter. That is an unfortunate set of circumstances but it does not overcome the deficiencies in proof. The fact of lodgement of a claim before 1 October 1992 has not been established on the balance of probabilities. Therefore the appeal is dismissed. DATED at WELLINGTON this 3 1 st day of January 1996 D A Ongley District Court Judge