Petrie v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 15 195 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN FRANCES MARGARET PETRIE of Hamilton 53 / 94 / 0226. Appellant (Appeal No. DCA 222/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION ON THE PAPERS This matter was set down for hearing at Hamilton on 11 August 1995, but the appellant indicated that she did not wish to appear and that a decision was to issue on the papers. The issue is whether or not the appellant complied with the provisions of s.147 of the Accident Rehabilitation and Compensation Insurance Act 1992 and lodged an Election Notice for a lump sum award by 31 March 1993. The appellant injured her knee on 13 May 1987 and lodged a claim for cover on 17 June 1993 when she was experiencing difficulties with the knee. On 8 September 1993, the appellant made a written application for lump sum compensation which the respondent declined on 15 September 1993 because the written Election Notice had not been lodged by 31 March 1993. This decision was upheld on review. The appellant has now appealed In her Notice of Appeal, the appellant stated: 'I was not told by my Dr or my Physio that I was entitled to put a claim in for my knee injury. Had I have known I would certainly have put in my claim." N She submitted that she had not been informed of her rights. In support of her appeal, the appellant stated that when she had her accident her doctor had sent her for treatment which was paid for by the respondent and when she had further pain and problems later she was still treated at the expense of the respondent. She later had to consult another doctor who arranged for x-rays and surgery, and her accident has caused her permanent problems. Her principal concern is that at no stage had anyone advised her of her entitlement to make a claim for lump sum awards. She said that she would not have taken any notice of the media reports regarding the election for lump sum awards prior to 31 March 1993 because at that time she was not aware that she was entitled to make a claim. Section 147 of the Act states: "(1) Where any person had 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 but has not received that compensation and makes written application for that compensation before the Ist day of April 1993, that person shall be entitled to payment under those sections if payment is made on or before the 30th day of June 1995 or after that date if pursuant to a decision given on review or appeal under Part IX of the Accident Compensation Act 1982 as continued in force by section 152 of this Act. (2) Where any person has suffered 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 (6 ) That person would have an entitlement to an independence allowance under this Act if the personal injury had been suffered 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 199 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 the 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 3 unless a claim in respect of the personal injury by accident had been lodged with the Corporation before the Ist day of October 1992. (3) Subject to section 148 of this Act, if - - - (a) No payment has been made in respect of personal injury by accident under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982; and b) No payment is made under subsection (1) of this section; and (c) No election is made under subsection (2) of this section - - - the person shall be deemed to have elected to receive an independence allowance under the subject to the conditions of section 54 of this Act as if the personal injury by accident was personal injury that had been suffered on the Ist day of July 1992. (4) Where any election to receive an independence allowance is made under subsection (2) of this section, no payment shall be made under subsection (1) of this section." This particular issue has been considered in a number of appeals in which the Court held that failure to lodge the written Notice of Election by 31 March 1993 is fatal to a claim for a lump sum award. Mr Cleary referred me to the decisions in Webster (22/94), Black (66/94), Demus (71/94) and B (23/95) in which the Court has held that the onus is on the claimant to make a written election within the deadline of 31 March 1993 and if no such election is made then the deeming provision of s.147(3) applies. Judge Ongley stated in B: " ..... Under the act the responsibility to make an election lies entirely on the Claimant .... and there is no provision for making an election out of time". In the circumstances, while I am sympathetic to the appellant's position, there is no discretion available to this Court whereby a late application can be accepted. Her appeal must be dismissed. DATED at WELLINGTON this 22nd day of August 1995 A W Middleton District Court Judge