Estate of Aubrey v Accident Compensation Corporation

IN THE DISTRICT COURT WELLINGTON REGISTRY HEARD AT CHRISTCHURCH Decision No. 10 8 /2008 Al 309/07 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 151 of the Act BETWEEN ESTATE OF NORMAN AUBREY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 26 March 2008 DATE OF DECISION: 26 May 2008 APPEARANCES/COUNSEL Ms Trish Aubrey (daughter of claimant) Mr I Hunt, counsel for ACC DECISION OF JUDGE P F BARBER The Issue [1] Is there a live issue in this case to give this Court jurisdiction? This is an appeal against a 13 July 2007 review decision which dismissed the review application filed on behalf of the estate of the late Norman Aubrey. [2] The Reviewer (Ms K Stringleman) found that the review did not relate to any decision made by the respondent. To the extent that that review could be considered as due to the failure of ACC to make a decision (s. 134(1)(b)), the Reviewer noted that there had not been unreasonable delay on the part of ACC. The reviewer noted that, by the time of the review hearing, the decisions sought on behalf of Mr Aubrey's estate (recalculation of weekly compensation and payment for stress and suffering) had been the subject of separate reviewable decisions and, therefore, there was no live issue. 2 [3] ACC submits that the Reviewer was correct; and, furthermore, there is no live issue as the appellant has been provided with the decisions sought, and the appellant is now seeking declarations from this Court which are outside the jurisdiction of this appeal. Background [4] The late Mr Aubrey had cover for a back injury, which occurred in June 1993 and received weekly compensation. On 1 April 2004 the issue of Mr Aubrey's weekly compensation calculations was raised. The query had arisen in the course of a 1 April 2004 review hearing about Mr Aubrey's entitlements from ACC. ACC then indicated to Mr Aubrey that it would investigate what appeared to be an inconsistency in its calculations. He was told that might take some time [5] Mr Aubrey died on 2 April 2004. ACC agreed to advise his widow (Mrs P Aubrey) about the weekly compensation issue when details were available. It appears that the matter was then overlooked. However, I note that the details required from a previous employer of the deceased were sought by ACC by fax of 26 February 2004. [6] Mrs Aubrey contacted ACC again on 4 October 2005. ACC interpreted Mrs Aubrey's contact as a request for a copy of Mr Aubrey's file which was made available to her. I note Mrs Aubrey had clearly advised her intention to claim under s. 126 of the Act and that "this is a formal claim to the Corporation." 7] There seems to have been no further action by ACC until Mrs Aubrey wrote to ACC on 27 February 2007 advising that she wished to make a formal claim regarding entitlements on Mr Aubrey's file. She particularly referred to lost earnings and to stress and suffering endured by her late husband over his compensation. [8] ACC looked into the entitlements which had been paid with a view to determining whether they were correct. On 30 March 2007, prior to the completion of that investigation, Mrs Aubrey completed an application for review. That referred to an ACC compensation decision of 1 April 2004 and also focussed on compensation for "stress and suffering". At that point in time ACC had not issued any April 2004 (or thereabouts) decision in respect of the weekly compensation issue or regarding her claim for compensation for stress and suffering. [9] On 14 May 2007 ACC issued a decision in relation to Mrs Aubrey's claim for stress and suffering. It declined the claim for lack of jurisdiction under the 2001 Act. The decision contained review rights. [10] On 29 June 2007 ACC issued a decision letter concerning Mr Aubrey's weekly compensation payments. This letter advised that there was an entitlement to backdated weekly compensation of $29,474.17 (net). It appeared that further information from the former employer of Mr Aubrey had enabled this. The letter contained review rights, and also advised that ACC would consider a payment of interest on the claim. An earlier letter of 30 May 2007 from ACC had advised that the under calculation of the gross sum of $37,932.99 was because the deceased had not been treated as a permanent employee but that had been "recently established". Advice was given about income tax on those arrears. 3 [11] The review hearing (from which this appeal flows) was heard on 3 July 2007. In her 1 July 2007 decision the Reviewer (Ms K Stringleman) focussed on s. 134 of the Act (set out below) and found that the claimant's application did not relate to a decision made by ACC and, furthermore, that there was no unreasonable delay on behalf of ACC in processing the entitlements claimed. The Reviewer noted that ACC had no made decisions on the issues in question (at the time of the application for review) and, therefore, held there was no live issue before the Reviewer. [12] On 25 July 2007, ACC issued a decision that it would pay $9,530.45 interest in respect of the backdated compensation adjustment on 27 July 2007. I was informed that covered the period between 26 February 2004 and 27 July 2007. [13] Following the review decision, ACC attended mediation with Mrs Aubrey to discuss issues she had with the management of her husband's claim. An agreement was reached at mediation which reflected that Mrs Aubrey would withdraw the appeal because the ACC decisions, which concerned her, had been issued with their own review rights. The agreement also provided an avenue for Mrs Aubrey to raise her issues about lack of ACC service. Despite the agreement, the appeal was not withdrawn. [14] ACC puts it that the appellant's concerns in relation to the service provided by ACC have been separately addressed and are also the subject of ongoing reviews under the ACC Code of Claimants' Rights. I understand that the appellant has exercised the right of review against the said two substantive decisions. Relevant Statutory Provisions [15] The Reviewer had focussed on the effect of s. 134(1) of the 2001 Act which reads: "134 Who may apply for review - (1) A claimant may apply to the Corporation for review of - (a) any of its decision on the claim: (b) any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay. (c) any of its decisions under the Code on a complaint by the claimant [16] Ms Aubrey also before me referred to s. 126 of the Act which reads: "126 Corporation to pay amount to claimant's estate (1) This section applies to any entitlement (other than lump sum compensation under Part 3 of Schedule 1) that is a payment that the Corporation - (a) is liable to make to a claimant, but that has accrued and is unpaid at the date of the claimant's death; or b) would have been liable to make to the claimant, if he or she had odged a claim for it. (2) The Corporation is liable to pay any amount to which this section applies to the claimant's estate if the estate applies for it within 3 years after the date of the claimant's death." 4 A Summary of the Oral Submissions made to me for the Appellant Estate [17] Ms Aubrey covered the above facts but made it clear that her mother has not found the attitude of ACC in this case to be credible and that the deceased's family regard ACC as having created quite unreasonable delays throughout this saga. It is of particular concern to the widow that she feels the relevant ACC case manager knew there was a substantial further monetary entitlement due to the late Mr Aubrey well before his death, but failed to tell him that so that he had experienced unnecessary financial stress. She appeared to be saying that there were constant delays in processing the deceased's entitlements and that she initiated action from time to time. I understood her to refer to ACC sending correspondence to the wrong address at material times, and she maintains that she has been misled. She emphasised a theme that it took about three years from the death of the late Mr Aubrey for the family to find out that significant arrears of compensation were due. It was emphasised that the appellant's family consider that ACC failed to act in a timely manner. It was also put that some of the review proceedings initiated by the family would have been unnecessary if they had received proper information from ACC. [18] Indeed, the family put it to me that there has been a manipulation of procedures against them. I understood that there are three other ACC decisions of this appellant awaiting review hearings, presumably, on the substantive decisions made by ACC referred to in the above summary of facts. [19] I asked the deceased's widow and her daughter what precisely they sought from ACC in terms of the appeal before me. They said that they wish ACC to admit that the late Mr Aubrey suffered poor service from ACC, and they seem to be seeking a further payment to cover his stress about financial matters. They also, particularly, seem to seek a declaration from me that ACC failed to act in a timely manner in terms of s. 134 of the Act. The family seem to be saying that ACC failed to advise the late Mr Aubrey, and later them, that a substantial compensation entitlement was owed to the late Mr Aubrey and have tried to cover up alleged oversights about that. (20] At that stage, Mrs Aubrey seemed to acknowledge that the hearing before me must be confined due to my lack of jurisdiction about the issues now concerning her, but she seeks that I declare that ACC failed to act in a timely manner, presumably, in recalculating the late Mr Aubrey's entitlement and then in paying it. Mrs Aubrey seemed to understand that her substantive alleged grievances would be the subject of the other reviews she has brought. Reasons for Decision [21] This Court can only address issues which arise and remain from the review decision because there was no primary decision leading to that review. The appellant's written submissions indicate that it is seeking general declarations regarding ACC's responsibilities and service issues which go beyond the narrow issue on appeals i.e. the effect of s. 134(1)(b). [22] it is submitted for ACC that there is no jurisdiction in this appeal for these issues to be addressed, that these issues have now been dealt with by ACC; and the appellant is also raising these issues in the context of reviews under the ACC Code of Claimants' Rights. I agree that is the correct forum for these concerns to be raised rather than at this statutory appeal. 5 (23] As ACC had not issued decisions at the time the review was filed, the review could only be considered to be a review under s. 134(1)(b): [24] The scope of s.134 was discussed by Judge Beattie in the case of Gregory (45/05). His Honour noted: "I find that section 134(1)(b) is a provision which is really only appropriate where there is a continuing delay and the claimant perceives that his/her claim is not being processed with all due diligence. Once the claim has been processed in a decision and payment made, then it seems to me that the purpose of section 134(1)(b) is largely spent and the pursuance for some form of declaration is somewhat nugatory". [25] At the time of the review application preceding the present appeal, there was a live issue because the substantive decision had not been issued. However, from the time that the substantive decision was issued (prior to the actual review hearing) there was no outstanding issue in relation to the application. The Reviewer did not consider that the delay between February 2007 and July 2007 was unreasonable. She correctly focused on the delay issue in terms of processing the claim of 27 February 2007. It is put for ACC that the fact that the matter was not looked into earlier has been dealt with by the interest decision and ACC's response to Mrs Aubrey regarding ACC's service issues. I agree. However, for all that, the deceased's query of 1 April 2004 should have been resolved by mid 2004 and not in mid 2007. That delay is not continuing and has now been resolved and is, probably, not a delay in "processing the claim" (refer s. 134(1)(b), but it is unacceptable. [26] It is submitted for ACC that, as in Gregory, there is nothing which this Court can now determine which will have any effect on this claim; and there is simply no live issue to be determined. I agree. All the decisions the appellant was seeking have now been made with the appropriate review rights being made available. [27] Mr Hunt emphasised that ACC (and he himself) understand the concerns of Mrs Aubrey and that is why a mediation was organised in about July 2007. That led to an agreement which, inter alia, involved withdrawing this appeal, but that did not happen. [28] As he put it, I have no power to assist the family of the late Mr Aubrey at this stage because the matter before me does not relate to any decision of the appellant (and any delay in processing has ended). I do not have power to issue the declarations sought by Mrs Aubrey. I simply have no jurisdiction. I understand that arising out of the said meditation was an addressing of the family's concerns under the Code of Claimant's Rights and that led to an apology to the family from ACC which the family do not feel is good enough; yet the apology must have been an admission by ACC of breaches of claimant's rights. [29] When I stand back and look at the situation outlined to me, there seems to be quite some merit in Mrs Aubrey's claim that there should have been much more initiative on the part of certain ACC staff to advise of the likely entitlement to arrears of compensation, and to obtain the necessary information to facilitate that, and to expedite the calculations with the consequential payment. Nevertheless, that payment has been made with what appears to me to be appropriate interest in terms 6 of rate and period coverage. The interest must have been conceded on the basis of ACC acknowledging failure to act in a timely manner. [30] It is difficult to know what can be done further for the estate or the family of the late Mr Aubrey. Perhaps, it would be appropriate for ACC to make a modest ex- gratia payment to acknowledge the stress and anxiety caused to the late Mr Aubrey and his family. My position is that I have no jurisdiction to deal with the grievances aired by the family and I cannot be certain that ACC is at fault to the degree alleged. I understand that the family have their current concerns under Review, which must relate to the calculation of the compensation and the quantum of interest. It seems to me they would be better dealt with by a further mediation to also take into account the views I have expressed above. [31] For the above reasons, this appeal is dismissed. Judge P F Barber District Court Judge WELLINGTON Al 309-07.doc(aw)