Wyllie v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HUNTLY Decision No. /95 /99 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 FAY MAYSIE WYLLIE DCA 151/99 Appellant - - - - - AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 29th day of June 1999 APPEARANCES Mrs A de Jonge, advocate for appellant Mr B C Corkill, counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant is entitled to be considered for a lump sum payment under the 1982 Accident Compensation Act in respect of a neck injury she suffered on 21 April 1987. This appeal is from a review decision given on 29 March 1999 wherein a number of issues were canvassed and decisions made. The only issue arising from that review 2 decision which is for consideration in this appeal is the issue identified above. Other issues which had been raised by the appellant at review stage have been referred back to the Corporation for further primary decision s and are not considered in this appeal. The essential facts in this case are that on 21 April 1987 the appellant suffered what was described by her than GP as minor whip lash injuries in a motor accident. She consulted her GP, Dr Searle, the next day and he completed an ACC form known as C14 and which is described as First Medical Certificate. That certificate gave details of the circumstances of the accident, the nature of the injuries and certifying that the appellant was unfit for work for a period of five days. At the head of this certificate it states: - . -- - - The top two copies of this certificate should be given to the patient if he wishes to make a claim under the Accident compensation Act. From evidence which was provided to the Review Officer and from findings made by that Review Officer it has been established that no copy of that certificate was ever provided to the Accident Compensation Corporation and it has no record of the appellant making any claim for cover at that time, nor of Dr Searle making any claim on her behalf or for any reimbursement for medical expenses in respect of his treatment of her on 22 April 1987. The first occasion that the Corporation learnt of this accident was when the appellant lodged a claim on 19 March 1993. That claim was made to cover the cost of various treatment expenses that the appellant had incurred. At the time of making this application the appellant did sign a form electing to receive lump sum compensation rather than entitlement to an Independence Allowance. It seems that initially the appellant's claim for cover was declined pursuant to section 63 of the 1992 Act in that it had been lodged more than 12 months after the date of injury. However section 63 was subsequently amended and the Corporation indicated that it would be prepared to reconsider the appellant's claim now that it had a discretion to extend the time for receiving claims. At the time it advised of this, it advised that the appellant would not be entitled to lump sum as her claim for cover had not been lodged prior to 1 October 1992. At the review hearing the Review Officer found as a fact that the appellant had not lodged a claim in respect of her 1987 accident at that time and that a claim in respect of it was not lodged until March 1993. It was further noted that whilst the appellant's employer had paid her 80% of her salary for the first week she was off work, there was no evidence to establish that her employer had made any claim for reimbursement, and that there was no evidence whatsoever of any claim having been lodged earlier than March 1993. The appellant's entitlement or otherwise to lump sum is governed by section 147(2) of --- -. -- the transitional provisions of the 1992 Act. That provision states as follows: 147. Compensation for non-economic loss - (2) Where any person has suffer personal injury by accident to which the Accident Compensation Act 1972 or the Accident Compensation Act 1982 applies, and - (a) That person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 in respect of that personal injury, but has not received any payment under any of those sections in respect of that personal injury; and b) That person would have an entitlement to an independence allowance under this Act if the personal injury had been suffer on the Ist day of July 1992 - that person shall be entitled to elect in writing, not later than the 31st day of March 1993, to receive either his or her entitlement under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982, or an independence allowance under and subject to the conditions of this Act, but not both. (2A) For the avoidance of doubt, it is hereby declared that, for the purposes of subsections (1) and (2) of this section, no person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 unless a claim in respect of the personal injury by accident had been lodged with the Corporation before the Ist day of October 1992. The findings of fact made by the Review Officer and the Corporation file itself makes it clear that the appellant had not lodged a claim in respect of her accident of 21 April 4 1987 before 1 October 1992 as is required by section 147(2A). The lodging of a claim prior to that date is a prerequisite for having an entitlement to a lump sum under the former Act, which to all intents and purposes was repealed as from 1 July 1992 but which survived in a limited context for persons who had suffered injury prior to 1 July 1992. In effect the 1992 Act gave a potential claimant six months from the date of repeal of the 1982 Act to bring his or her claim for cover and lump sum. If no claim was lodged by that date all rights to lump sum were lost. There is no provision for any extension of the time limit nor for any discretion to be given to the Corporation to receive any late applications. In those circumstances the situation is that the appellant has no entitlement to lump -. -. . sum and this is so even though she made the election to receive lump sum within the further statutory time frame allowed for that particular purpose. However an election within time is of no validating effect where there was no lodgment of a claim within time . For the foregoing reasons therefore the decision of the respondent to deny the appellant an entitlement to lump sum compensation in respect of her injuries sustained in the motor accident on 21 April 1987 was correct. This appeal is therefore dismissed. DATED at WELLINGTON this 19th day of July 1999 M J Beattie District Court Judge 151.99Wyllie.doc