Estate of FK v Accident Compensation Corporation

PURSUANT TO S 160(1)(b) ACCIDENT COMPENSATION ACT 2001 THERE IS A SUPPRESSION ORDER FORBIDDING PUBLICATION OF THE APPELLANT'S NAME AND ANY DETAILS THAT MIGHT IDENTIFY THE APPELLANT IN THE DISTRICT COURT AT AUCKLAND [2015] NZACC 340 ACR 64/15 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN ESTATE OF FK Appellant AND ACCIDENT COMPENSATION CORPORATION a body Corporate duly constituted under the provisions of the said Act Respondent Hearing: 2 November 2015 Appearances. MK Appellant I Mclachlan for the respondent Judgment: 12 November 2015 RESERVED JUDGMENT OF JUDGE JH WALKER 1] The person who brought these proceedings is the son of the deceased. The leceased was FK (the deceased) whose date of death is 19 May 2001. [2] The deceased's son MK was born on 12 May 1993 and was 12 years old when his father died. [3] The respondent in these proceedings is the Accident Compensation Corporation (the Corporation). This is an appeal pursuant to s 151 of the Accident Compensation Act 2001 (the Act). Background [4] The deceased was residing in Tauranga working for a Tauranga company at the time of his death. [5] He was a panelbeater and car painter and collapsed at his place of work on 18 May 2001. [6] He was admitted to hospital via ambulance. [7] The hospital notes indicate he had a seizure while in the ambulance. [8] A CAT scan was carried out and he was admitted to ICU. His condition remained critical and unstable. Death was pronounced at 1530 hours on 19 May 2001. [9] The CT scan indicated: RT frontal intracerebral haemorrhage extends from floor of interatrial fossa to the lateral ventricle. There is extensive intraventricular haemorrhage involving all ventricles. A small quantity of generalised bubarachnoid is present. [10] The deceased's wife and one of their sons were in attendance at the hospital prior to death. [1 1] Subsequent to the deceased's death his widow (the wife) filed a ACC claim on 23 October 2001. There was some delay as it seems it was expected there was to be a coroner's report but in fact this proved incorrect. [12] The Corporation obtained a medical report from Dr Debbie Ryan-Sheridon whose conclusion was: . Evidence indicates that FK died of a massive subarachnoid haemorrhage and related internal intracranial bleeding. . The subarachnoid haemorrhage would not satisfy a personal injury under the Act and would not be covered by the Act. The Act referred to in her report was the Accident Insurance Act 1998 (AI Act). [13] The wife was advised by letter on 2 December 2001 that cover had been considered under s 28(4) and s 39 of the AI Act. She was advised the claim was declined due to the Corporation's decision that the cause of death was not the result of an accident as defined by s 28 of the AI Act. She was advised of her right to review and that there was a strict limit of three months to make any application for review. [14] It is noted that the wife sought, and obtained, three pages of notes relating to subarachnoid haemorrhage and 11 pages of the Tauranga Hospital notes on 21 January 2002. No application however was filed by her for review. Present Application [15] It would appear that the deceased's son MK ( also known in the file as TV) had contact with the Corporation in September 2014. [16] There was email correspondence between him and the Corporation and on 6 October 2014 a file note states: MK phoned for an update. I confirm that I had received the physical file and the medical information file suggests that his father's cause of death was from a subarachnoid haemorrhage. There is no indication that this cause of death was the result of an accident or physical injury and therefore the claim was declined for cover in 2001. MK asked for this decision to be reviewed. I advised that he was outside the review time frame. However it is his decision whether he wishes to pursue the review due to extenuating circumstances. He asked for the review application to be sent to him anyway. [17] MK filed an application for review which was received by the Corporation on 21 October 2014. [18] The application form states: If you are making this application three months (or more) after ACC decision, please list your reasons, if any for the late application. [19] MK has stated: The reason for late review is because my mother had no idea about how to do the process and I was too young at the time as well. My mother also was scared for the safety of her life if the employer my father was working for might kill her for being a nark. And she was led to believe the evidence that what the medical reports had said which I'm disputing because of the fact that my dad was just too young to die. [20] MK received a decision dated 26 November 2014 which stated: We accepted your late review application Thank you for explaining the reasons you were unable to send your review application to us within the three month time limit for reviews. Based on the information received, we are happy to accept your review application. [21] MK forwarded a brief of his evidence for the review (contained in pages 10 to 12 of the bundle of documents (BOD) provided). It has been referred to by him in the course of this hearing. [22] The matter was set down for a case conference in front of a reviewer, Paul Wilson on 28 January 2005. It was noted that the review was initially set down for hearing on 8 January 2005 but was adjourned at the request of ACC and set down for an earlier case conference. [23] In his notes of the case conference Mr Wilson states: It was also pointed that the decision to accept late lodgement by ACC had been made in error as the decision of 6 December 2001 fell under the provisions of the 1998 Act which was in force at the time not the present 2001 Act. The 1998 Act did not allow for late lodged reviews to be accepted (unlike the 2001 Act). [24] The case conference stated that ACC accepted that the decision to decline late lodgement had been made in error and that under the legislation in force at the time ACC did not have an authority to grant or decline a late lodged review application. [25] It also confirmed that enquiries had established there was no Coroner's report. [26] His case note state: ACC was satisfied its original decision of 6 December 2001 was correct. It may however issue a new decision, which would then have valid rights of review, if there was new evidence that its original decision was flawed or incorrect in some way. Any such evidence would have to be provided by MK however. [27] At the case review MK said ACC had been wrong to lead him to believe it had accepted a late review. He was satisfied there was sufficient evidence already available to show that cover had been wrongly declined. [28] The case note also state: He wished to proceed to review as soon as possible. [29] Mr Wilson noted it was agreed an initial review hearing would be fixed to determine solely the point relating to the late application. He stated: If the reviewer determines there is jurisdiction to do so a further hearing will then be held to consider the correctness or otherwise of the decision of the 6" of December 2001. If the reviewer determines there is no jurisdiction due to the late lodgement of the review application the matter would conclude at that point subject to either party's right to appeal the review decision to the District Court should they so wish. [30] Accordingly the review hearing was set down and heard on 4 February 2015 and the reviewer Ms Hill issued a decision on 10 February 2015. Ms Hill dismissed the application for review stating she had no jurisdiction. She states: At the time this decision was issued there was a strict three months time frame to lodge the application for review. There is no discretion provided to allow for "extenuating circumstances' as found in the present legislation. [31] She stated: At the hearing, it was explained to MK that I did not believe I could consider ACC's decision because I had no jurisdiction. That was because the application for review was not lodged in the three months after the decision was issued. . . . MK said the he understood but was angry at ACC for leading on thinking he could review it. [32] The Reviewer referred to s 136 of the AI Act 1998 (Al Act) that required an application must: [a] Be written. [b] Be made on the form provided by the insurer for the purpose, if the insurer provides such a form. [c] Identify the decision in respect to which it is made. [d] State the grounds of which it is made, and [e] Be made within three months of the date on which the claimant has the relevant decision. [33] She notes that MK's application for review was lodged well outside the three month time frame and that it is important to note there is no discretion to allow for a late application under the AI Act. [34] She refers to the change in the ACC Act 2001 which came into force on 1 April 2002 where the ACC was given limited jurisdiction to allow late applications for review if there were extenuating circumstances. She noted it is not however retrospective. [35] She refers to the decision of Judge Beattie in Ward' who noted that the new law could not be applied retrospectively as to do so would have the affect of disadvantageing those claimants who were bound by the three months provision of the 1998 Act. [36] The Reviewer concludes: (64/2003 The outcome for MK is similar to that of Mrs Ward in that there is no discretion to allow an application for review to be lodged after three months from 6 December 2001. Therefore I have no ability or jurisdiction to consider the primary decision of 6 December 2001. [37] In respect to this appeal, it is noted that Judge Henere made an initial minute on 3 March 2015. This stated that the appellant was to file and serve submissions and any evidence by 2 September 2015 and further that the respondent was to file any submissions within 28 days thereafter. It is noted that MK advised at the hearing that he was relying on his brief of evidence that had been provided in respect of the review case and his submissions that were filed on 11 May 2015. [38] The respondent had also filed written submissions dated 18 June 2015. [39] MK confirmed that it was his address on the Corporation's letter to the Court filing the documentation but stated he did not have a copy of the submissions. A copy was provided to him at the hearing. [40] I asked if he required the matter to be stood down so he had an opportunity to read these submissions but he indicated he was wishing to rely on the evidence he had provided to the Court. Position of the Appellant [41] MK had not filed any additional evidence. He stated in the brief his evidence was that he had watched his father work at the Tauranga workshop. His father used to panel beat and paint cars and trucks. His father applied, on rust holes, bog and newtec which had high vapours that his father inhaled daily. He stated that once the product was dry his father would file and sand the filler which dust particles drifted in the air and he inhaled it. His father also welded with no eye protection. He had witnessed his father applying highly toxic car primers, top coat paints and thinners which were applied by compression spray gun machine. [42] He stated that he saw his father had no eye protection, no spray paint mask, no overalls or gloves and that he just wore jeans, tee shirt and bare hands. He said that his father's employer did not supply him with these and he could not afford them. He said that he had seen his father's entire head and face covered with paint spray and his eyes were dark red with pain spray on his eyelashes and up his nostrils and hair. He said that his father used to be coughing and breathing heavily for about half an hour until he needed to go back into the workshop to apply the next coat. He said after his father had completed work he would drive them home and he heard him snoring and coughing all night long. [43] He states: I know for a fact this caused his death because car paint is harmful and can cause illness and even death if inhaled. Subarachnoid haemorrhage was caused by chemical paint inhaling. 44] He also referred to the fact that his father was used all his life by his employer even before he was born which his mother had told him. He said his father had no choice but to work for the employer and that his father had to sell their home and that he bought two cars from his employer. He said his employer had stolen the cars from his father when he died because he said his father had owed him money. [45] He stated his mother and his brothers have had to move to Auckland into a state house and he left his mother to go and live with his father in Tauranga. [46] He said while he was living there with his father he tried to convince him to come back and live as a family again. He said he had overheard his parents had a plan that his father return home in a couple of months so he told his father he was going to return home to his mother and look after her until he returned. He said a month after he had gone back to live with his mother and waiting for his father's return he heard some bad news from his uncle that his father had passed away . He said he flew down to the Tauranga Hospital where he saw his father unable to walk or move. His father was classed as dead waiting for life support to be turned off. [47] He stated he knew his father had been abused by his employer. He stated "The intracranial bleeding was caused by assault from Employer". [48] MK advised that he had spent time living with his father in Tauranga and also his younger brother had been there for a period of time. [49] He stated in his submissions his belief that: My father died from paint chemicals that he inhaled without wearing a protective mask for carpainting for his employer for years. He was found in the toilet at work on the floor where all the fumes caused him to faint, black out, fall asleep from being overtired and fatigued but not enough sleep bangs his head on the floor and dies of a natural cause. I don't think it was. He was suffocated by the fumes, he bangs his head trying to reach for air but it was too late. [50] He stated the Police had never attended to a nature of this cause of death and it is not right Police should be at anyone's death. [51] In respect to his father's Employer he stated: As an employer he should have provided the employee with protective mask, suit, equipment and ventilation machine to prevent death. I think the Police should have made it there to investigate for evidence for an accidental death at work. [52] In respect to the Doctor's report, he stated: The doctor's report wasn't certain. I think it is a mistake and my family and I believe the long term chemical inhalation was why he died. The reports and decisions they made were a mistake from the ambulance first to the Police and the doctor. [53] MK sought the case would remain confidential and not open to the public because he feared for his safety as the Employer had threatened him on the telephone last time he had asked him for his father's car. [54] He stated that this Employer had: Even made it look as if my late father died naturally because this man always used my father as his slave and maybe he didn't want my father to leave him so he killed him. [55] I asked MK about his response to the position of the respondent as to the lack of jurisdiction. [56] MK reiterated that he believed it was the responsibility of the Corporation since they accepted his claim and he had not known until the review hearing about the matter of lack of jurisdiction. Discussion and Analysis [57] It is accepted that the wife, on 23 October 2001 at a meeting with a representative of ACC, raised her concern that the family believed that the deceased collapsed due to all the chemicals and dust involved in his employment tasks. It was noted that the wife was present with her brother. She confirmed she and the deceased had been separated for some three years. She stated at the date of death the deceased was going to leave his employment and work on their relationship again. [58] The interview at the time also referred to the closeness of the relationship between the deceased and his Employer, that the Employer had kept the deceased's car and stated the deceased still owed him some money. [59] The wife stated because the relationship of the deceased and his Employer was "tight", the deceased was not going to tell him that he was planning on leaving his employment. [60] I noted that subsequently the wife did request the hospital notes and was advised of timeframes relating to review but did not follow this up. MK at the hearing indicated that the wife was too upset at the time which is why this matter was not progressed. [61] It would appear likely that MK may have mistakenly thought that the ACC, by initially accepting his claim for a late review, would consider an alternative explanation, and accordingly blames the Corporation of not advising him earlier. [62] I find there has been no medical evidence contradicting the findings of Dr Ryan-Sheridon. No new medical evidence has been put before the Court which MK has been invited to do at the review hearing and accordingly the only medical evidence the Court can take into consideration are matters on the file in 2001 [63] The Medical Services Discharge Summary from the Tauranga Hospital dated 22 May 2001 stated that the primary diagnosis is death following massive subarachnoid haemorrhage. The clinical summary confirms that FK was admitted via ambulance having been found unconscious at work. It is noted he had a seizure while in the ambulance, and when he reached the hospital was incubated and a CT scan undertaken which confirmed the massive haemorrhage. The clinical notes summary details responses to his condition throughout and includes investigations for bloods, ECT, x-ray, a CT head scan. It names the doctors involved. It notes the family were at the unit and they were very distressed. The clinical notes mention a partner of some four months also being present at the hospital. [64] The deceased's condition was monitored intensely over the period of time he was in hospital. It was noted that he was confirmed to be legally brain dead at 1154 hours however the hospital waited until his mother and sister from Wellington and the oldest son from Auckland came before the ventilator was discontinued at 1530 hours. [65] It is not clear why ACC, when approached by MK 13 years later, did not advise him earlier as to the lack of jurisdiction for a review. It would appear that the Corporation's personnel had some sympathy with MK's position given that he was young when his father died. It is noted he had stated: There was a lot going on at the funeral and family issues and he wanted to make a claim for his father and find peace of mind. [66] Certainly MK's presentation at the appeal confirmed that he was profoundly affected by the death of his father at the time and has ongoing difficulty accepting it. [67] MK did not respond to the legal submissions and relies entirely on his personal view of the incorrectness of the decision made by the doctors as to the cause of his father's death. [68] However, it is accepted that s 136(2)(e) of the Accident Insurance Act 1998 states that an application for a review must be made three months from the date of the decision. [69] The 1998 Act does not contain discretion to extend this time as now contained in s 135(3) of the Accident Compensation Act 2001 which states. 135 How to apply for review . . . (3) Despite subsection (2)(f) and (g) and any time frame prescribed in regulations made under section 328A for the lodgement of a review application, the Corporation must accept a late application if satisfied that there are extenuating circumstances that affected the ability of the claimant to meet the time limits, such as- (a) where the claimant was so affected or traumatised by the personal injury giving rise to the review that he or she was unable to consider his or her review rights; or (b) where the claimant made reasonable arrangements to have the application made on his or her behalf by an agent of the claimant, and the agent unreasonably failed to ensure that the application was made within the required time; or (c) where the Corporation failed to notify the claimant of the obligations of persons making an application. [70] Counsel's for the Corporation referred to the decision of Ward' where Judge Beattie held: The Injury Prevention, Rehabilitation and Compensation Act 2001 [now called Accident Compensation Act 2001] came into force on 1 April 2002, that is after [ACC] had made the decision which is now in issue. Although that Act was in force by the time the applicant made her application for reviews, a rule as a matter of law that the provisions of that Act pertaining to the review do not apply, as the decision which was being sought to be reviewed, was the decision made before the coming into force of that Act. Furthermore, the transitional provisions of the 2001 Act, in particular section 239(1), provides for Part 6 of the Accident Insurance Act 1998 to continue in force and apply for review or appeal from a decision made by the Corporation prior to 1 April 2002. [71] Judge Ongley made a similar determination in Scott', citing and affirming Judge Cadenhead in Harris'. He states: [22] I agree with the appellant that section 391 of the present Act does not apply here as the application was not made or filed before 1 April 2002. However, I disagree that section 21 of the Interpretation Act 1999 applies here, as that section applies to continue the validation of the existing power. Any power reposed to the appellant to review the decision expired on 12 March 2002 and I cannot now resort to a transitional provision to breathe life into a power that was dead before 1 April 2002. The position may be different for a transitional period spanning a power that existed during the currency of both the 1998 and 2001 legislation periods. To interpret the transition provisions in the way contended for by the appellant would be to take a provisional right to review all primary decisions made during the currency of the 1998 legislation. The principle of finality of decisions would be at an end and this clearly is not the intention of the legislature. [72] S 391 was also considered by Judge Cadenhead in Los'ev ACCS. 2 64/2003 3 28/04 4 35/03 This decision is contrasted with the fact situation in Harris in that in the Los'e case the decision was issued on 1 1 March 2002 and the mandatory period of three months for filing a review did not expire before the 2002 Act came into force. In this case Judge Cadenhead referred the matter back to see if there were any extenuating circumstances. [73] In the present situation however the decision letter declining cover was dated 6 December 2001 and the period runs from that time. Accordingly any review was required to be filed by 6 March 2002, which was prior to the date that the 2001 Act came into force. Accordingly s 391 has no application. Conclusion [74] While it is understood that MK is upset that the ACC initially stated that it was prepared to allow the late application, it is clear they had no jurisdiction to do so. I find that the reviewer was correct in her decision of 10 February 2015 that she lacked any jurisdiction to consider the primary decision of 6 December 2001. [75] For the reasons above the appeal is dismissed. [76] There is an order pursuant to s 160 of the Act prohibiting publication of the name of the appellant in these proceedings. Accordingly the appellant is to be known as the Estate and FK and the son who appeared, and was heard at the hearing to be known MK. [77] Costs are to lie where they fall. Judge J H Walker District Court Judge 1 1/2/04, Judge Cadenhead, DC Wellington 12/04 ACR 64-14-Estate of FK This decision is contrasted with the fact situation in Harris in that in the Los'e case the decision was issued on 11 March 2002 and the mandatory period of three months for filing a review did not expire before the 2002 Act came into force. In this case Judge Cadenhead referred the matter back to see if there were any extenuating circumstances. [73] In the present situation however the decision letter declining cover was dated 6 December 2001 and the period runs from that time. Accordingly any review was required to be filed by 6 March 2002, which was prior to the date that the 2001 Act came into force. Accordingly s 391 has no application. Conclusion [74] While it is understood that MK is upset that the ACC initially stated that it was prepared to allow the late application, it is clear they had no jurisdiction to do so. I find that the reviewer was correct in her decision of 10 February 2015 that she lacked any jurisdiction to consider the primary decision of 6 December 2001. [75] For the reasons above the appeal is dismissed. [76] There is an order pursuant to s 160 of the Act prohibiting publication of the name of the appellant in these proceedings. Accordingly the appellant is to be known as the Estate and FK and the son who appeared, and was heard at the hearing to be known MK. [77] Costs are to lie where they fall. Judge J H Walker District Court Judge 11/2/04, Judge Cadenhead, DC Wellington 12/04 ACR 64-14-Estate of FK