Taylor v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 212 /98 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 GRAHAM STEWART TAYLOR DCA 193/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 8th day of September 1998 APPEARANCES: Mr MR Shepherd counsel for appellant Mr A H Johnson counsel for respondent RESERVED JUDGMENT OF JUDGE MJ BEATTIE The issue in this appeal is whether a letter issued by the Corporation on 29 October 1997 constituted a decision of the Corporation and thereby attracted rights of review to the appellant pursuant to section 89(1) of the Act. 2 BACKGROUND On 10 May 1996 the appellant lodged a claim for cover in respect of back strain suffered by him in the course of his employment as a joiner. Medical evidence established that the appellant suffered from long term back problems. A report was sought from Grahame Inglis, Orthopaedic Surgeon, who confirmed that the appellant had been suffering back pain for some considerable time and that this had been exacerbated in the latest lifting incident. It was Mr Inglis advice that the appellant should seek a change of employment to one which involved no recurrent bending and lifting. The diagnosis was that his back pain was likely to remain essentially unchanged. In a letter dated 18 December 1996 the Corporation wrote to the appellant advising that the medical information was that his ongoing incapacity was not as a consequence of any personal injury by accident but rather simply non-specific low back pain mechanical in nature, and that in those circumstances his entitlements to weekly compensation would cease on 31 January 1997. This letter gave the appellant advice that if he did not accept that decision he had a right of review which must be exercised within three months. It transpires that the appellant consulted the secretary of his Trade Union with a view to lodging an application for review of that decision but that by oversight that instruction was never implemented and the three month period duly elapsed without any action being taken. It was not until after the three month period had elapsed that the oversight was discovered, thereupon the secretary of the union sought the 3 Corporation's indulgence to have the Corporation to reconsider the matter even though the request for review was out of time. The Corporation advised that it could do nothing as the statutory time period had elapsed. In October 1997 solicitors instructed by the appellant wrote to the Corporation and enclosed a further orthopaedic report from Mr W H Taine, Orthopaedic Surgeon. That letter from the solicitors requested that the Corporation reconsider its decision under section 67A of the Act in the light of the report from Mr Taine and that it revoke its decision to cancel entitlement and substitute a new decision. It is the Corporation's letter of 29 October 1997 replying to that letter, which is the letter which is the subject of this appeal. That letter states: "I refer to your letter dated 15 October 1997. Our Branch Medical Advisor and I have considered Mr Taine's medical opinion and all information on Mr Taylor's claim file. Mr Taylor had symptoms of mechanical low back pain since the 1970s and early 1990s. His occupation (in 1996) aggravated a pre-existing symptomatic condition for which we allowed a 21 week entitlement/ recovery period. Regretfully I must advise that our decision dated 18 December 1996 remains unchanged. Should you wish to contact me please phone me on 684 1515 sd/- Case Manager" On 12 November solicitors acting for the appellant filed an application for review, that application advising that the appellant was seeking to review "a decision advised to me in writing on 29 October 1997 concerning section 67 of the Act". By letter dated 9 December 1997 the Corporation advised the appellant's solicitor that it was unable to accept that application for review, stating that as the correspondence did not contain any new information and served only to reiterate ACC's decision of 18 December 1996 it was not able to be reviewed. The letter further stated that in terms of section 89(5) it was unable to accept the application for review as being a review of its December 1996 decision because of the lapse of time. This letter did contain review rights and it is the decision of the Corporation not to accept the application for review which is now the subject of this appeal. In his decision, the Review Officer adopted the reasoning of this Court in Hull (249/97) and ruled that the letter contended to be a decision letter was not so and that it simply asserted the status quo and did not contain any decision which was capable of review. The Review Officer did go on to say: "It seems that the main issue as far as Mr Taylor is concerned is that if there are any more incidents where he suffers from injury to his back, that he will be able to seek medical and/or physiotherapy treatment. He should be assured that if those incidents which may occur in the future give rise to cover there will be entitlement." 5 The relevant statutory provisions pertaining to this appeal are firstly section 89(1): "Any claimant (or the representative of any deceased claimant) who is dissatisfied with a decision of the Corporation in respect of his or her claim or entitlement under this Act may apply to the Corporation for a review of that decision." Section 67A of the 1992 Act provides that: "(1) The Corporation may revise any decision made by the Corporation if it appears to the Corporation that the decision has been made in error, whether by reason of mistake or by reason of false or misleading information having been supplied or by reason of fresh evidence or for any other reason; and the Corporation may - (a) Amend the decision; or ( b ) Revoke the decision and substitute a new decision. (2) Every amendment to a decision or a substituted decision shall constitute a fresh decision of the Corporation for the purposes of this Act." Mr Shepherd, counsel for the appellant, refers to this Court's decision in Hull (249/97) where the Court stated after considering dictionary definitions of the word "decision": "If those meanings of the word decision are applied in the context of section 89 I find it clear that it is only the decisions which (i) are the act of deciding the claimant's claim or entitlement, (ii) are the manifestation of the process of the conclusion that has been reached upon a particular claim or entitlement, (iii) 6 conclude the consideration process and state the result, or (iv) identify the defining moment on any issue pertaining to a claim for an entitlement, that are intended and meant by that word." Counsel submits that the letter of 29 October was an answer by the Corporation to a request by the appellant for it to reconsider its decision under section 67A in the light of the information now provided. Counsel submitted that the Corporation's letter was therefore an act of deciding the claimant's entitlement based on the new and fresh evidence received from Mr Taine. He submitted that the letter contains a fresh determination based on the comments of the Branch Medical Advisor and his interpretation of Mr Taine's report. He submitted that the letter constitutes a decision under section 67A, it being a revised or amended decision, the Corporation having considered Mr Taine's report but, determining that its original decision was correct. Counsel finally submitted that the letter was not simply a reassertion of the status quo but rather it was a decision relating to entitlement where new information had been provided. Mr Johnson, counsel for the respondent, also adopted this Court's reasoning in Hull (supra) and submitted that the Corporation's letter was intended to be explanatory of the Corporation's position in the light of the demands which had been made by the appellant's solicitor in his letter. He submitted that the letter does not purport to be a judgment or conclusion or resolution of the issue of the appellant's entitlements under the Act, as that decision had been made by the Corporation in its earlier decision of 18 December 1996. Counsel further submitted that having regard to the meaning of the words "revised", "amend" or "revoke" contained in section 67A, the letter does not purport to do any of those things. Accordingly it cannot be regarded as being a fresh decision of the Corporation for the purposes of the Act. DECISION In considering the issue which calls for the determination in this appeal there is the need to have regard to the background against which the purported "decision" letter or advice was given. In this case the Corporation made a decision to terminate the appellant's entitlements under the Act in respect of a particular claim. At the time it advised the appellant of its decision it recognised that it was such a decision and gave advice of the appellant's right to have that decision reviewed, if he so chose. From the Corporation's perspective no such request was received and therefore from its perspective the question of entitlement was at an end. Whilst it is now learned that the appellant did intend to seek a review of that decision that fact is not relevant to considering the issue in this appeal. The fact is that review rights in respect of that decision were extinguished and the situation is no different from that where indeed there had been no intention to review. The next step in the chronology was a request by the appellant's solicitor for the Corporation to reconsider its decision in light of the information from Mr Taine and to issue a fresh decision pursuant to section 67A. That the Corporation did so consider that request is clear from the wording of the letter of 29 October 1997. Having so considered the matter it advised that its decision of 18 December 1996 remained unchanged. 8 In the decision of Hull (supra) this Court noted that the provisions of section 89(1) of the Act only gave a right of review where the decision of the Corporation was one in respect of a claimant's claim or entitlement and thereupon ruled when it considered such decisions were made as has been set out earlier in this judgment. In this present case it is clear that the decision affecting the appellant's entitlement was that made on 18 December 1996. For a new decision to be arrived at, I find that there would need to be a fresh application for entitlement. Simply asking the Corporation to reconsider a previous decision to decline or terminate is not an application for entitlement under the Act and therefore advice that the Corporation does not intend to reconsider cannot be a decision within the meaning of section 89(1). As noted in Hull it can only be the decision affecting entitlement which can be the subject of review and that this can only occur once. Once that decision is made it remains until there is a fresh application for entitlement with new grounds or a new basis of claim is made out. It must be more than simply a new application on old grounds that is, matters which have already been the subject of an earlier decision. Furthermore, I find that it is not open to a claimant to require the Corporation to invoke section 67A and contend that if it elects not to do so, that election not to do so is in itself a decision capable of review. The provisions of section 67 A are clear that it is only an amended decision or a substituted decision that constitutes a fresh decision and which is capable of being the subject of review . If the Corporation of its own initiative elects to invoke section 67A, that is as it should be, but I find that a claimant cannot demand that the Corporation 9 reconsider under section 67A and that if it elects not to do so that refusal is somehow a decision. Such is not the case. In the context of this appeal the Corporation acted on certain medical advice and made a decision which went unchallenged. If the appellant were to suffer from a reoccurrence of his injury as a consequence of further accident then no doubt entitlements under the Act would thereupon be revived. Certainly a claim for entitlement can be made and that in every sense is a fresh matter requiring fresh consideration and fresh decisions. The Review Officer eluded to this fact in his decision as set out in the background narrative in this decision. The letter of 29 October 1997 was not a letter making a fresh decision in respect of a claim or entitlement under the Act, at most it was explanatory of the status quo and as such it was not a communication which was a decision within the meaning of section 89(1) of the Act. Accordingly, the decision of the Corporation and the Review Officer in that regard is confirmed and this appeal is dismissed. DATED at WELLINGTON this 29 day of September 1998 eathe MJ Beattie- District Court Judge Taylor.doc(gm)