Kelly v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 7/2010 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN FRANCES MARY KELLY Appellant (Appeal No. AI 96/09) AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on 14 December 2009 APPEARANCES Ms R Radich, counsel for appellant. Mr A Barnett, counsel for respondent. RESERVED DECISION OF JUDGE J CADENHEAD THE ISSUE [1] This appeal concerns the Corporation's decision, upheld at review, declining to accept the late application for review on the grounds that extenuating circumstances had not been established. BACKGROUND OF FACTS [2] I have substantially used the background of facts provided by the respondent, as upon reading the file they appear accurate. [3] On 15 December 2006 the Corporation issued a decision suspending the appellant's entitlements to weekly compensation on the ground the appellant was no longer incapacitated from personal injury which was covered. I:JUDICIAL/CADENHEAD/ACC/ FM Kelly [4] The Corporation continued to have ongoing communications with the appellant concerning other claims for entitlements including in particular entitlement to the independence allowance. [5] By May 2007 the appellant had engaged John Miller Law as her advisors. [6] On 10 May 2007 and on 16 January 2008 the appellant, through John Miller Law, filed review applications in respect of two separate independence allowance decisions. In addition during this period following the primary decision of 13 December 2006 the appellant was seen, at the request of the Corporation, for assessment by Dr Christian (December 2007) and Dr Doris (November 2007). [8] Notwithstanding that the appellant had received the primary decision suspending entitlements in December 2006 and that weekly compensation ceased from 30 June 2006 an application for a review of the primary decision was not made until 19 September 2008 against the decision of 13 December 2006. 9] With the application for review came a statement by the appellant giving her reasons for the late application namely: "Why did I not apply for weekly compensation when it was cancelled? To put it in a package; pain, lack of sleep, no support, no person, doctor or any professional believing or helping me. Anyone could have taken me by the hand and led me over a cliff, I would have gladly followed them. It is getting back to that stage now. P.s. I have stopped opening ACC mail as well. One would clear a forest with what they send out." [10] On 24 September 2008 the Corporation issued the decision declining to receive the late review application as it was not satisfied that extenuating circumstances had been made out. In particular it was not satisfied that the appellant's circumstances were such as to affect her ability to lodge a review application within the required timeframe. [11] This decision was upheld by a review decision dated 27 February 2009. 2 SUBMISSIONS OF THE APPELLANT [12] The reason given by the appellant for the late filing of the review application is that she was so affected by her injury that she became depressed and was unable to .. consider her review rights. It is submitted furthermore that the respondent created a confusing situation by suspending her entitlements and then sending her for an initial medical assessment and updating her IRP. [13] The medical report of Dr Gil Newburn dated 13 June 2008 has been carefully considered, in which he diagnosed the appellant with a major depressive episode and chronic pain. The point is made that she is now indecisive, and as a result has problems completing tasks in a timely manner. The submission is made that because her entitlements had been suspended, combined with her chronic pain, lack of sleep and depression, the appellant was unable to file her review application in time or she was unable to consider her review rights. DECISION [14] By section 135 of the Injury Prevention and Rehabilitation and Compensation Act 2001 the time limit for filing a review application is three months. However by section 135(3) "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." The operative words in section 135(3) are that the extenuating circumstances "affected the ability of the claimant to meet the time limits." A non-exhaustive list of examples of such circumstances are given including: "(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. " [15] It is evident from the language of section 135(3) and in this case the example given at paragraph (a) that the threshold is high - the circumstances are such that the person "is unable to consider" review rights. [16] The evidence does not establish that there are circumstances that affected the ability of the appellant to meet the time limits, for example that she was so traumatised that she was "unable to consider her review rights" 3 [17] There is no evidence that the appellant was confused about the meaning or effect of the decision and the effect was very real in that she stopped receiving weekly compensation. [18] There is no evidence that the appellant was confused by the Corporation's management of the case and in particular that her weekly compensation had been stopped. And as the reviewer noted in his decision this was not a claim made by the appellant in her note accompanying the late application for review. [19] Up to April 2006 the appellant had an advocate assisting her with her accident compensation claim. And then in May 2007 the appellant retained John Miller Law. An application for review of a lump sum compensation claim was lodged at that time and yet a further application for review was lodged in January 2008. But in all this time there is no application for the review of the decision suspending weekly compensation. Thus, seemingly there is nothing affecting her ability to file (or instruct her solicitors) to bring review applications. The fact that the appellant was consulting solicitors over the relevant time spans is a very important factor in this case. She had someone to help her and advise her what to do. [20] The appellant now places some reliance on an assessment by Dr Newburn of 12 June 2008 in which he makes a diagnosis of a depressive episode and in the course of the assessment refers to the appellant as having "become increasingly withdrawn, especially over the last year" and that "attention and functional memory have become markedly more impaired over the last six months." This opinion of itself does not establish an inability to make a review application even at the time the assessment was made. But in addition and importantly the assessment is some 18 months after the event in question and is not reflective of the appellant's state of mind at the relevant time. [21] . In fact closer to the relevant time (although somewhat remote as well) is the assessment of Dr Doris, psychiatrist, of 12 August 2007. In this assessment he makes a diagnosis of a pain disorder but no diagnosis of a depressive disorder. The prominent symptoms he observed were irritability and some indication of anxiety and of course pain. On the other hand Dr Doris reported that the appellant was "fully orientated at interview" and "her thought form was normal" and on a simple test of concentration found to be normal. (Refer paragraph 14 "Mental state examination"). 4 [22] In my conclusion the evidence then does not establish that at the material time there were extenuating circumstances that affected the ability of the appellant to meet the time limit for filing a review application. [23] For the reasons that I have given this appeal is dismissed. There is no order . . as to costs. DATED this 22re day of January 2010 J. Cadenhead District Court Judge 5