Simpson v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 34 195 HELD AT AUCKLAND 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 GRANT SIMPSON 65 / 95 / 0282 . Appellant (Appeal No. DCA 286/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 6th day of June 1995 APPEARANCES Mr Rowlett for appellant Mr A Springett for respondent DECISION OF JUDGE D A ONGLEY The appellant applied for review of the Corporation's decision declining to accept a late application for review of a decision of the Corporation given on 12 January 1994 declining eligibility for lump sum compensation on grounds that no election had been made under s 147 of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant suffered back strain and contusions to his left shoulder and buttock through an accident on 23 July 1987 and was unable to work by virtue of incapacity until February 1988. On 3 March 1990 he suffered a neck injury but was refused earnings related compensation because no loss of earnings could be shown. On 10 August 1992 Mr M A Shatwell Orthopaedic Surgeon furnished a C15 medical certificate certifying a permanent disability in respect of the neck injury and - 2 the Corporation asked for a disability report. Mr Shatwell provided a full report dated 27 August 1992 indicating a basis for a minor lump sum award under s 79 of the Accident Compensation Act 1982. He said that the appellant's neck injury had subsided to the extent that he could continue with his usual building activity and that his impairment of bodily function under s 78 of the 1982 Act was less than 2%. By letters of 8 September 1992 and 15 February 1993 the Corporation requested the appellant to provide information for assessment of lump sum compensation. In March 1993 the Corporation sent to the appellant a standard letter advising that he would have to make an election under s 147 of the Act if he wished to receive lump sum compensation instead of a disability allowance. No response was received from the appellant. The Corporation then sent a decision letter of 3 June 1993 advising that lump sum compensation could not be considered on either claim because no election had been received by the due date 31 March 1993. That decision elicited a response and the appellant complained. He attended an interview on 14 June 1995 but declined to continue with the interview because the Corporation's officer wanted to have a third person present or to record the interview on tape. After that the Corporation attempted several times to contact the appellant but without success. On 5 July 1993 the Corporation wrote to the appellant confirming the Corporation's decision and referring him to his review rights, but without mentioning the date when the period for review would expire. The appellant now maintains that he wrote on 11 July 1993 requesting a review. He has produced a copy of his letter but no record appears on the Corporation's file. On 19 October 1993 a client officer saw the appellant who complained that he had done everything he thought was necessary to make a lump sum claim. He was vague in answering questions about why he had not responded to the letters requesting s 79 submissions and why he had not applied for a review of the Corporation's decision. The appellant then lodged a complaint with the Ombudsman. On 12 January the Corporation wrote to the appellant restating its decision that in default of an election by 31 March 1993 to receive lump sum compensation the appellant was not eligible and in that letter the Corporation advised him of his review rights. This letter gave the appellant another opportunity of initiating a review. A client officer contacted him personally to notify him of the decision and the appellant said that he intended to take the matter to the Ombudsman. He complained to the Minister and the Minister's officer sent him a letter dated 31 March generally confirming the Corporation's view of the matter and also notifying the appellant that he was entitled to apply for review within three months of the Corporation's decision of 12 January 1993. When the appellant received that letter he would have had over a week before time expired to apply for review. He did not apply for review but instead wrote to the Ministers office again on 5 April 1994 and on 12 May 1994. Further correspondence reflected the appellant's dissatisfaction but it is not relevant for present purposes. In July the appellant instructed Accident Compensation Advisors to act on his behalf and Mr Rowlett communicated with the Corporation. It is easy to see the source of the appellant's dissatisfaction. He had discussed a lump sum claim with his doctor in August 1992 and he understood that his claim - 3- was being processed. Possibly the only communication that would have alerted him to the need to make an election was the form letter sent by the Corporation to clients, including the appellant, in March 1993. He has never acknowledged receiving that letter. The distinction between an election and an application for lump sum compensation may not be entirely obvious to a claimant. The appellant has not demonstrated a special ability to focus on the essential aspects of his claim and it can be imagined that if he received a form letter notifying him of the need to make an election he may well not have realised that he had to do something more than merely apply for lump sum compensation. As his application was already with the Corporation it would not have been surprising if he did nothing further. An application for review may be made in the prescribed form within 3 months after the date on which notice in writing has been given of the decision in respect of which the review is sought. The appellant maintains that he has applied for a review twice, once by a letter of 11 July 1993 which did not reach the Corporation's file and secondly by his complaints to the Minister which his advocate submits should be treated as an application for review. The question was kept alive by an application for review of the Corporation's decision declining a review. That was the issue considered by the review officer in respect of the claims for accidents of 23 July 1987 and 3 March 1990. To refute the appellant's claim that he had applied for review on 11 July 1992 the respondent submitted that he had not mentioned that letter again and had not enquired concerning the progress of the "review". The review officer referred to that evidence. He found that there was sufficient evidence to establish that the appellant had received information in regard to hi right of review both in writing from the Corporation, as well as the Minister, and also in discussion with staff members on many occasions. The review officer was left in no doubt that the appellant was aware of what was required and had not availed himself of the right of review. The review officer appeared to accept that the letter of 11 July 1993 had been written, there being no evidence to the contrary. He said" "In respect of the further evidence presented at hearing by way of a letter written by the applicant and dated 1 1 July 1993 I consider this has no relevance to the issue before me as it was in fact written prior to the decision of 12 January 1994 for which the late application for review was received." The notice of appeal raises the question whether that finding was wrong in fact and law. The Corporation made a decision on 5 July 1993 and notified the appellant along with advice that he had review rights. In effect it re-issued the same decision on 12 January 1994. There is nothing in the Act to prevent that being done but it could not have the effect of nullifying an application for review already made. If the appellant had applied for review in July 1993 he was entitled to have that review determined. There is a possible difficulty with s 90(9) of the Act which states that where the hearing of a review has not been commenced within 3 months after the lodging of the application for review, and the delay is not caused or contributed to by the applicant, the application shall be deemed to have been determined in favour of the applicant. If the Corporation was not aware that an application had been made an injustice would result if the review was deemed to be determined in favour of the applicant. In this case however the applicant is clearly in the wrong and his - 4- acts caused or contributed to the delay. He did not use the prescribed form and did not take any steps to alert the Corporation when he received no response to his application for review. He did not even realised that it amounted to an application for review. The following passage appears in the transcript of the review hearing: "Review Officer But I do have one question about this letter that was written on 1 1th July, that you have never mentioned it in any correspondence to the Minister when he said to you about you had review rights, you didn't mention it to him. Simpson I didn't even think, I didn't even consider until Alan saw it that it was even important, there you are. Out of all the letters I've written I didn't even consider it to be important. I didn't even consider it to be an application for review certainly. The appellant's misunderstanding of his rights and obligations has confounded the conduct of this claim from the beginning. The fact that he did not realise the significance of an application which he made is not determinative. The question is whether, judged objectively, it was a review application. The letter read: "I am disappointed to find that you cannot help me. I feel strongly that the problem lies with the total incompetence shown by ........... in the Wanganui office. I will accept your offer of a review. Please let me know when this will take place." The possible inference of trickery that might be taken from the appellant's production of a copy of the letter which he had never before referred to is rather off set by his own apparent lack of guile in producing it and placing no importance on it. Either he was devious in clothing its production with a plausible story as to why he had not disclosed it before, or he had genuinely overlooked its significance. The review officer appears to have been prepared to accept his evidence on that point and I think I must do so on this appeal. I consider that there is sufficient evidence that the letter was lodged within the time for application for review. The question is whether it was an application for review in terms of's 89(5). The simple answer to that appears to be that there is no form prescribed by the Act or regulations thereunder. There is a prescribed form for appeals to the District Court under the Appeals Regulations 1992/275. The reference to prescribed form for reviews must be regarded as directory rather than mandatory. The appeal is allowed so the appellant will be entitled to a review of the question whether he is entitled to lump sum compensation. The appellant will be entitled to costs $400 only. DATED at WELLINGTON this 27 day of JULY 1995 D A Ongley District Court Judge