Wikeepa v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 109 /98 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 ESMERALDA MONICA WIKEEPA DCA 302/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 5th day of May 1998 APPEARANCES: Ms E M Wikeepa in person Ms L Rice for respondent DECISION OF JUDGE M J BEATTIE The issues in this appeal are whether the respondent's decisions (i) to decline to pay lump sum compensation in respect of the appellant's injury suffered 2 on 11 December 1990, and (ii) to decline to backdate the appellant's independence allowance to a date prior to the date of assessment, were correct. Background Facts On 11 December 1990 the appellant injured her ankle in a motorcycle accident. The Corporation's records disclosed that it was not until 8 March 1992 that the appellant lodged a claim for cover and that this claim was for medical fees which the appellant had been incurring because the ankle injury which she had sustained was continuing to give her great trouble. No further claims or entitlements were sought in respect of that injury until the appellant made a further claim in relation to it on 23 December 1996 when she sought payment of a lump sum as had been provided for under the 1982 Accident Compensation Act. Her claim was declined on the grounds that it had been made out of time. In addition, the appellant claimed an independence allowance for her injury and her entitlement was duly assessed and the allowance was granted and backdated to the date of that assessment, but not as the appellant sought, back to the date of the accident. The appellant submitted to this Court that she had not been told of her entitlements at the time she lodged her claim for cover in 1992, and that she only found out about her entitlements in December 1996 when she was assisting a relative with his claim and she read certain ACC literature that had been provided for that purpose. It is not contended by the appellant that she made any oral or written application for lump sum entitlement prior to December 1996, but in any event there is no record of same on the file. Decision It has been held by this Court in several previous decisions, notably Busch Shanly and Matene that there was no legal obligation on the Corporation to advise claimants of their potential entitlements prior to the cut-off date that was provided in the transitional provisions of the 1992 Act. In this case it is a fact that the appellant was not aware of her entitlements and nobody told her, and while that is regrettable, it does not give any right of relief from the clear provisions of the statute. Section 147 of the 1992 Act states that if a claim for personal injury by accident is lodged before 1 October 1992 the entitlement to lump sum compensation under the 1982 Act is preserved if the person makes a written application for such lump sum before 1 April 1993. I find that the provisions of section 147 are quite clear and that the time for the appellant to make application for lump sum compensation under the 1982 Act has long passed and therefore the Corporation was correct to advise that her request, made as it was in December 1996, must be declined. Insofar as the independence allowance is concerned it is necessary to set out the chronology of relevant events. The Corporation's file establishes that the appellant made written application for an independence allowance on 6 December 1996. An assessment of her entitlement to an independence allowance was carried out on 10 January 1997 and the primary decision of 4 the Corporation to pay her an independence allowance and to have that payment backdated to the date of the assessment of 10 January 1997 was made on 21 March 1997. The appellant made a specific request to the Corporation to have her independence allowance backdated to the date of the accident and a decision was made by the Corporation on 7 May 1997 advising that the provisions of section 54(5) of the 1992 Act did not allow for the backdating of an allowance earlier than the date of assessment. That decision was given and the appellant was notified in it of her right of review. The appellant duly sought a review of that decision. The review hearing took place on 14 August 1997 and the Review Officer delivered his decision on 8 September 1997. That decision stated that the provisions of section 54(5)(b) of the 1992 Act applied so that "and any such allowance shall be payable from the date of the assessment or the date determined under subsection (2) of this section whichever is the later." The Review Officer went on to state "Backdating of the independence is not provided for in the legislation. While I have sympathy for the position of Ms Wikeepa is in, without written application having been made earlier the legislation does not permit the independence allowance to be backdated." As at the 7th of May 1997 the relevant provision of the 1992 Act stated: 54. Independence allowance -- (2) Any entitlement to the independence allowance shall commence not earlier than 13 weeks after the date on which the personal injury causing that disability was suffered. (5) The Corporation shall not pay any independence allowance unless the assessment of the degree of disability of the person in respect of whom it is to be paid has been made in accordance with --- (a) Scales prescribed under this Act which may be based on impairment or disability or a combination of impairment and disability; or (b) In the absence of the scales referred to in paragraph (a) of this subsection, the American Medical Association Guides to the Evaluation of Permanent Impairment (Second Edition) --- and any such allowance shall be payable from the date of the assessment or the date determined under subsection (2) of this section, whichever is the later. By section 13 of the Accident Rehabilitation and Compensation Insurance Amendment (2) 1996 section 54 of the principal act was repealed and a new section 54 came into force on 1 July 1997. The new section made provision for the date from which the payment of an independence allowance could be made and that provision, section 54(7)(a) states: "The following provisions apply in relation to payment of an independence allowance. 6 a) Except where section 54(A) (5) of this Act applies on the reassessment of a person's whole-person impairment, the date on and from which the independence allowance is payable is the date on which the person to whom it is payable lodged a claim for cover in respect of the personal injury from which the impairment results." Thus it was that by the date of the review hearing section 54(5) had been repealed and had been replaced by section 54(7). There is nothing in the transitional provisions of that Amendment Act which is applicable to the particular subsection regarding the date of payment. Accordingly I find that the Review Officer was incorrect to apply the provisions of section 54(5) (the repealed provision) when he came to consider his decision in September 1997. The whole concept of the review procedure is to revisit the issue which is the bone of contention as raised by the claimant and look at it afresh having regard to any new evidence or information which might be pertinent to the particular issue that needs to be determined. I find that the review procedure is more than simply casting an eye over the first instance decision of the Corporation to see whether the particular officer who made the decision got it right. The review procedure allows for representation by the interested parties, the making of submissions and the giving of evidence and the whole issue which is the subject of the review hearing is alive and the Review Officer who conducts that hearing has the power to substitute his own decision for that which had earlier been made. Finding that to be the position as I do, I find that the Review Officer must have regard to the statutory regime that is in being at the time that review is being undertaken. In the context of this appellant her request for the backdating of her independence allowance is being re-visited and a decision must be made on it, that is in accordance with the statutory provision which is in force at the time that the matter is being so considered. In his decision the Review Officer makes no mention of the repeal of section 54 and the enactment of a new provision and one can only presume that he was not aware of this fact at the time of the hearing and when he made his decision. Indeed when the matter came on for hearing before me Counsel for the respondent did not make any direct reference to the fact that the statutory provision which the Corporation relied on had been repealed although it must be acknowledged that in her written submissions, counsel did state "that section 54(5) of the Act as it was at the date of the appellant's independence allowance assessment provided that the independence allowance is payable from the date of assessment or 13 weeks after the date of first injury whichever is the later date and is not until reference has been had to the actual statute that the two position has become clear." This Court acknowledges that it did not pick up on this point during counsel's submissions and the appellant could hardly be expected to know of it. However having determined as I have the precise nature of a review hearing I find that it was not open to the Review Officer to consider the appellant's request by reference to a statutory provision which had by then been repealed. To apply the amended statutory provision was not in any way giving that provision retrospective operation. 8 The fact that the particular provision relies on an event which has passed for its operation in the future does not make it retrospective. In fact all that the amendment did was to change the event in the past from one to another for the future operation of the provision. For the avoidance of doubt I find that the concept of review as contained in sections 89 and 90 of the Act is different from the concept of appeal as provided in sections 91 and 92 of the Act. In the matter of appeal this Court is being called upon to determine whether the decision of the Review Officer was correct. In such a case this Court is an appellate body and its task is to consider the issue raised in the appeal in the light of the facts and the law as it stood at the time that review decision was made. In those circumstances it would not be open to this Court on appeal to find that the Review Officer's decision was wrong merely because between the date of the review decision and the date of the hearing of the appeal the relevant statutory provision had changed so as to make that decision wrong were it to have been made at the date of the appeal. The Review Officer is a person who has the authority to make a decision on behalf of the Corporation as it affects the claimant and the entitlements of that claimant. This Court on appeal cannot make such a decision, it can only state whether that decision was correct or not and if it is incorrect it can revoke it. This then requires "the Corporation" to make a new decision in the light of the advice that its earlier decision was wrong and has been revoked. Thus it is that it is the issue or claim that is still alive at review hearing and as such that issue or claim must be determined in accordance with the law that is the law at that time. 9 I have considered the provisions of s.20(e) of the Acts Interpretation Act 1924 but find that none of its provisions apply to enable the repealed provision to still apply in the circumstances of this case. Whilst the decision at first instance was validly done at the time, the whole question of the "Right" and the claim was required to be looked at afresh and a new decision made based on the evidence and material presented at review. For the foregoing reasons I find that the decision of the Review Officer was incorrect as it determined that the appellant's independent allowance could not be backdated earlier than the date of assessment when the prevailing statutory provision enabled it to be so. The plain meaning of section 54(7)(a) is that the independence allowance is payable from the date on which the person to whom it is payable lodged a claim for cover in respect of the personal injury from which the impairment results. In the context of this appellant she lodged a claim for cover for her ankle injury, which is the injury from which the impairment results, on 8 March 1992. Whilst that date is a date prior to the enactment of the 1992 Act in which was created the entitlement known as an independence allowance, I find the plain meaning of the subsection does enable the payment to be backdated to that date. By virtue of section 147(3) the appellant is deemed to have elected to receive an independence allowance under and subject to the conditions of section 54 of this Act as if the personal injury has been suffered on 1 July 1992. I find there is nothing in that transitional provisions which would indicate that payment cannot stretch back further than the commencement of the Act which created the independence allowance. This provision clearly says 10 subject to the conditions of section 54 and of course the conditions of section 54 allow for that earlier payment date. I find that the provisions of sections 54(7) and 147(3) allow for a different consideration than that which applies under sections 72 of the 1992 Act which is the provision relating to the payment of interest where the decisions of this Court in SB v ARCIC (105.96) and Unwin v ARCIC (21/97) have restricted or not allowed interest on monies that were outstanding for any period prior to becoming into force of the 1992 Act. The concept of interest on monies to which a claimant is entitled is entirely a different consideration than the date for payment of the entitlement itself and accordingly I find that the appellant is entitled to payment of her independence allowance from 8 March 1992. Accordingly the decision of the Corporation as it relates to declining to pay the appellant a lump sum in respect of her injury suffered on 11 December 1990 was correct but that the Corporation's decision not to permit the backdating of her independence allowance to a date earlier than the date of her assessment is hereby revoked. DATED at WELLINGTON this 22 day of May 1998. Deathe M J Beattie District Court Judge Wikeepa.doc(gm)