Hamilton City Council v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND WELLINGTON REGISTRY Decision No. 079/2004 (Appeal Nos. AI 662/02 and AI 663/02) UNDER The Accident Insurance Act 1998 BETWEEN HAMILTON CITY COUNCIL Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at AUCKLAND 11 November 2003 DATE OF THIS DECISION: 26 March 2004 COUNSEL Mr A D Sharp for appellant Miss F Becroft for respondent INTERIM DECISION OF JUDGE P F BARBER [1] In a 19 November 2002 review decision the Reviewer, Mr P Jackson, was asked to focus on the effect of a 30 May 2002 letter (set out below) from the Chief Executive of the respondent (Mr G Wilson) advising the appellant that: “The Corporation has considered the November 2001 review decisions and does not intend to undertake any Experience Rating adjustment in relation to these belated decisions. These reviews were lodged after the 1 April 2000 statutory cut-off for Experience Rating assessments.” In his said decision Mr P Jackson had found: “The issue before Reviewer Justine Falconer in November 2001 did not extend to Experience Rating. Bearing in mind the case law cited above, I do not consider ACC’s letter of 30 May 2002 to be ‘a decision’ which gives a right of review of Experience Rating, because Experience Rating matters can only be reviewed within 3 months of an ERA being issued. Experience Rating assessments were no longer issued after 1 April 2000.” 2 [2] The main issue before me is whether the Reviewer was correct to decline jurisdiction to enquire into the effect of the said letter of 30 May 2002. [3] In the Notice of Appeal herein, dated 16 December 2002, the appellant appeals “against a decision made under s.144 of the Injury Prevention, Rehabilitation and Compensation Act 2001 (‘the Act’) [about the formalities of review decisions] on an application for review by the Hamilton City Council in relation to a claim by Daphne Searle”. The appeal is based on the following grounds: [a] The Reviewer was wrong in law to hold that he had no jurisdiction in the matter; and [b] The Reviewer erred in law in not determining that, given the provisions of s.390 of the Act [set out below], the issue of the experience rating could be decided on review. [4] The relief sought by the applicant is an order that the review decision be quashed and that the respondent be directed to remove Ms Searle’s claim costs from the appellant’s claims history and to make the necessary adjustments to the experience rating, and to provide refunds where applicable. [5] The issues in case AI 662/02 regarding George Dixon are identical to this case concerning Ms Searle, except that Mr Dixon’s relevant injury was to his right knee on 3 April 1994 while employed by the appellant. Background [6] In October 1995 Daphne Searle (“the claimant”) lodged a claim for cover for a gradual process work injury. The injury was described as OOS and the claimant alleged that it was as a result of data entry and typing during her course of work for the appellant. The respondent accepted the claimant’s claim in December 1995 but never advised the appellant that the claim had been accepted as a work injury. [7] On 29 June 1998 the claimant’s entitlements were suspended on the basis that her ongoing symptoms were no longer related to the personal injury for which she had cover. The claimant applied for a review of that decision. The review was heard in October 1998 before Ms J Falconer who issued a decision on 2 November 1998 upholding the respondent’s decision. [8] On 1 August 2000 Mr C McCord of Injury Management New Zealand (IMNZ), which is a third party administrator in terms of the respondent’s partnership programme for the management of workplace injuries (i.e. IMNZ manages the claims for the appellant), wrote to the respondent on behalf of the appellant, requesting further information on the claimant’s claim. [9] On 21 August 2001 the respondent wrote to IMNZ indicating that the claim had been accepted as a work-related personal injury. [10] IMNZ applied for a review of the respondent’s decision. [11] On 7 September 2001 the respondent wrote to IMNZ and advised it was prepared to reconsider its decision that the claimant’s injury was work-related and remove costs from the appellant (as the claimant’s employer). The letter asked that IMNZ withdraw the review application on that basis. 3 [12] On 7 September 2001 IMNZ advised that it would not withdraw the review because it did not believe that the costs would be removed as it had previously been advised by the respondent that a review decision was required before Experience Ratings could be adjusted. [13] The review was held on 25 October 2001 before Ms Falconer who issued a decision on 19 November 2001 quashing the respondent’s decision and finding that the gradual process claim was never properly investigated. She held: “In terms of Section 148 I determine that Mrs Searle’s claim for cover does not meet the criteria of Section 7 of the 1992 Act and substitute my decision to that effect.” [14] The decision directed the respondent to issue a decision to the appellant stating whether the respondent would adjust Experience Rating costs. [15] In May 2002 IMNZ contacted the respondent concerning the claimant’s claim. On 30 May 2002 Mr G Wilson advised the appellant that the respondent had considered the November 2001 review decision and did not intend to undertake any Experience Rating adjustment. The letter noted that the reviews were lodged after the 1 April 2000 statutory cut-off for Experience Rating assessments. [16] On 27 June 2001 IMNZ lodged an application for review against that 30 May 2002 “decision” of Mr Wilson. The review convened on 22 October 2002 before Mr Jackson, Reviewer, who issued a decision on 19 November 2002 declining jurisdiction on the basis that the 30 May 2002 letter was not a reviewable “decision” for the purposes of the Act. Review Decision [17] The Reviewer’s reasons for decision are as follows: “At the commencement of the review hearing, I outlined to the parties that I had concerns about whether I had jurisdiction to consider the matter of experience rating contained in ACC’s letter of 30 May 2002. Whilst reading the file in preparation for the review hearing, I had an initial impression that if Mr Garry Wilson’s letter of 30 May 2002 was actually ‘a decision’ – as defined under the ACC Act, Hamilton City Council would have won a ‘deemed’ decision. This was because a review hearing had not been scheduled within 3 months of the application for review being received by ACC. I alerted the parties to my concerns about jurisdiction as soon as the hearing commenced, and they both addressed this question. Mr Coe also submitted that Mr Wilson’s letter of 30 May 2002 was not ‘a decision’. Since the review hearing, I have made a long and careful evaluation of the information before me. I had anticipated being able to issue a prompt decision, but my decision-making has required considerable research. I find that I do not have the jurisdiction. However, this is not due to the timeliness factor, but due to what jurisdiction a Reviewer has to consider matters before him/her. 4 In the review decision issued by Ms Justine Falconer in November 2001, she referred the matter back to ACC in order to make a decision concerning whether it will adjust Experience rating costs. Experience Rating was not part of her jurisdiction when she carried out the review. There is a considerable amount of caselaw involving work injury, experience rating, and the clarification of a Reviewer’s jurisdiction in these specific areas. I have given particular notice to the recent appeal decision of Ministry of Education (56/2000), as well as the other caselaw cited in that decision, e.g. Cadbury Confectionery Limited, Hawkins Construction Limited, Alstrom, and the earlier Lane Walker Rudkin case. Bearing in mind the approach taken in these cases, there is the opportunity to address any qualifying claims when an experience rating assessment (ERA) has been issued, and an application for review has been lodged within 3 months of the ERA. If there is no ERA, there is no opportunity to review qualifying claim costs. I am persuaded by the approach taken in the appeal decision of Bartlett (118/99) and Tony Elmiger Limited (270/98) that I have no jurisdiction to consider the matter of experience rating. These decisions both outline that a Reviewer’s jurisdiction is limited to the decision before him/her. If the decision under review is work injury, the Reviewer should not go further to look at other ‘downstream effects’. The issue before Reviewer Justine Falconer in November 2001 did not extend to experience rating. Bearing in mind the caselaw cited above, I do not consider ACC’s letter of 30 May 2002 to be ‘a decision’ which gives a right of review of experience rating, because experience rating matters can only be reviewed within 3 months of an ERA being issued. Experience rating assessments were no longer issued after 1 April 2000. Although I understand the wish of Hamilton City Council to have these claim costs addressed, I am unable to facilitate that process. The Reviewer declines jurisdiction.” The Statute (The Injury Prevention, Rehabilitation, and Compensation Act 2001) (“the Act”) [18] A “decision” is defined in Section 6 of the Act as: “decision or Corporation’s decision includes all or any of the following decisions by the Corporation: (a) a decision whether or not a claimant has cover: (b) a decision about the classification of the personal injury a claimant has suffered (for example, a work-related personal injury or a motor vehicle injury): (c) a decision whether or not the Corporation will provide any entitlements to a claimant: 5 (d) a decision about which entitlements the Corporation will provide to a claimant: (e) a decision about the level of any entitlements to be provided: (f) a decision relating to the levy payable by a particular levy payer: (g) a decision made under the Code about a claimant’s complaint.” [19] Section 134 of the Act provides: “134 Who may apply for review (1) A claimant may apply to the Corporation for a review of— (a) any of its decisions on the claim: (b) any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay: (c) any of its decisions under the Code on a complaint by the claimant. (2) An employer may apply to the Corporation for a review of its decision that a claimant's injury is a work-related personal injury suffered during employment with that employer. (3) An employer may not apply to the Corporation for a review of a decision about the entitlements that have been or are to be provided to a claimant who has cover for a work-related personal injury. (4) A registered health professional or organisation may apply to the Corporation for a review of its decision that the registered health professional or organisation contributed to personal injury caused by medical error. (5) A levy payer may apply to the Corporation for a review of a determination under section 209(1) or a decision referred to in section 236(1).” [20] Sections 236 and 237 read: “236 Challenges to levies (1) Any person who is dissatisfied with any decision of the Corporation in respect of any levy paid or payable or claimed to be payable under this Part by that person may seek a review by the Corporation of that decision within 3 months after the person is notified of the decision. (2) However, no right of review exists under this Act in respect of the calculation of the purposes of the Income Tax Act 1994 of the taxable income of any person. (3) The entitlements that have been given or are to be given to any person under this Act may not be challenged in any review under subsection (1). 6 (4) A review brought under subsection (1) must be dealt with by the Corporation under Part 5, and that Part (including the provisions relating to appeals) applies with any necessary modifications.” “237 Corporation may revise decisions (1) If the Corporation considers it made a decision in error about levies payable by a person, it may, subject to section 243(3), revise the decision at any time, whatever the reason for the error. (2) A revision may – (a) amend the original decision; or (b) revoke the original decision and substitute a new decision. (3) An amendment to a decision, and a substituted decision, is a fresh decision.” [21] Section 390 of the Act reads: “390 Corporation may revise decisions (1) The Corporation may revise any decision specified in sub-section (2) if it appears to the Corporation that the decision was made in error, whatever the reason for the error. (2) The decisions are the following decisions made before the commencement of this Act: (a) decisions made by the Corporation (including decisions about premiums): (b) decisions not made by the Corporation, but made in respect of claims that the Corporation is responsible for managing. (3) In revising a decision, the Corporation must apply the Act that applied at the time when the decision being revised was made. (4) The Corporation may revise a decision that, by operation of section 66(1) of the Accident Insurance Act 1998, it has accepted a claim. (5) However, if the Corporation issues a decision in reliance on subsection (4), the Corporation may not recover from the claimant any payments made by it, in respect of the claim, before the date of the revision unless the claimant made statements or provided information that are, in the opinion of the Corporation, fraudulent or intentionally misleading. (6) A revision may – (a) amend the original decision; or (b) revoke the original decision and substitute a new decision. (7) Every amendment to a decision, and every substituted decision, is a fresh decision. (8) Part 5 applies to every fresh decision made under this section.” 7 Further Evidence Called Before Me [22] By consent two witnesses gave evidence before me for the appellant. I refer to that evidence in a limited way because it seemed to me to contain some submissions and argument rather than relevant factual evidence. [23] The first witness was Mr B R Blackman, the Managing-Director of IMNZ. He referred to meeting with Mr G Wilson on 31 July 2001, and to the respondent’s position being that, in its view, employers had ample time to review their historic claims, and some had chosen not to do so, and the respondent would not be giving any further refunds to employers. Mr Blackman commented that such a stance appeared to be directly related to experience rating and assessment thereof without any regard to the fundamental issues of cover which must be established before any experience rating can occur. Mr Blackman said that, at the said meeting of 31 July 2001, Mr Wilson stated that the respondent would not concede on the issue. Mr Blackman seemed to be saying that, in his view, “in line with the Good Health Wanganui decision” [Decision No. 300/99, Good Health Wanganui Ltd v ARCIC per Judge Hubble] the respondent must issue decision letters to employers in order to comply with the mandatory provisions of the Act and that the respondent has the legal right [perhaps he meant ‘obligation’] to adjust premiums under the Act. [24] Mr Blackman seemed to be saying that his concern was that the respondent, in effect, was simply refusing to issue a decision when, in his view, it was legally bound to issue a decision to an employer where the respondent had accepted a claim as a work injury. Mr Blackman also seemed to be arguing that the respondent had no legal basis to make a policy decision and issue directives to branches not to issue decision letters if requested by employers on historic claims decided under the 1992 Act. He opined that the respondent had a mandatory obligation under the statute to ensure that employers were notified of their review rights of any work claim, and that, where a claim was found not to be work-related, experienced rating costs should be refunded. [25] Mr Blackman referred to the present case fitting into his above concerns, namely, it was a work injury claim; there was no notification to the appellant; and “reviewed or decision changed by ACC and then reticence or refusal to deal with the premium-related issues”. [26] There was no cross-examination of Mr Blackman. [27] The other witness was Mr C J McCord, a Principal Case Manager with IMNZ. [28] Mr McCord said that he had been involved in the issue of employers’ work injury claims from June 1997. Initially, the process was largely one where, when a claim was highlighted, a letter to the acting case-manager was sufficient to start the communications process. The respondent would confirm that, in its view, the injury was work-related and, if IMNZ agreed, the client employer would be advised “and that was the end of it”. He continued, “In some cases, ACC would change their position on a claim and would consequently adjust the employer’s Experience Rating Assessment with a resulting refund in most cases to the employer”. [29] According to Mr McCord the Good Health Wanganui v ACC decision of 1999 led to a perceptible change in attitude from the respondent towards IMNZ. The respondent and IMNZ co-operated to work through outstanding claims, but that 8 process suddenly ceased in mid-2000 because, Mr McCord opined, the respondent adopted the position that it would contest disputed claims based on the potential cost to the respondent even regarding claims which were not work-related. [30] Mr McCord also covered some of the ground dealt with by Mr Blackman. He referred to meeting with Mr Wilson and others to discuss employers’ claims and to Mr Wilson being very clear that the respondent would not be providing any information on any claim and would completely resist any claim. Mr McCord added, “This was stated to be its position, despite the fact that it was aware of and acknowledged the existence of the Good Health Wanganui decision”. [31] Mr McCord said that as a result of that, since mid-2001 it has no longer been possible for IMNZ to obtain information on work-related claims and the respondent staff have been directed not to provide any information regarding them. He said that, in practice, some case-managers have issued decisions and formal reviews have been actioned, and the respondent now confirms claims which are not work-related but will not remove the costs. He states that the respondent continues its policy of non-disclosure even at review proceedings. He understands that the respondent is aware of a large contingent liability through the mismanagement of claims and has expressed a clear intention to protect that exposure. He concluded his evidence-in- chief: “The cases involving Hamilton City Council which are the subject of appeal in this matter, are the end result of one of those approaches adopted by ACC and it is against this background that the ‘decisions’ of ACC have to be considered and not in some abstract vacuum”. [32] There was no cross-examination of Mr McCord. A Summary of the Submissions for the Appellant [33] Mr Sharp submits that the issues for my determination are, first, whether the said 30 May 2002 letter from the Chief Executive of the respondent constitutes a “decision” which gives a right of review; second, if so, whether the review was provided within the statutory period of three months; and third, whether, in any case, the Review Officer erred in holding that he did not have jurisdiction in this matter under the Act. [34] On the first issue, i.e. whether the letter of 30 May 2002 constitutes a “decision”, Mr Sharp submitted that one of the decisions which may be revised by the respondent is a decision made by it before the commencement of the Act, and that includes decisions about premiums, and this is expressly provided for in the Act. [35] He referred to the respondent, under s.390(3) of the Act, being required to apply the Act of Parliament which applied at the time when the decision being revised was made. There is no dispute that the injury to the claimant occurred in the period between the 1992 and 1998 Acts. Mr Sharp submits that the Accident Rehabilitation and Compensation Insurance Act 1992 therefore determines whether the letter, which was the subject-matter of the review, constitutes a “decision” or not. He submits that the statutory definition of “decision” in subsequent Acts is not relevant. He submitted that for there to be a “decision” under the 1992 Act it is necessary that there should be: [a] An act of deciding a claimant’s claim or entitlement; 9 [b] A manifestation of the process of the conclusion that has been reached upon a particular claim or entitlement; [c] That the decision must conclude the consideration process and state the result; or [d] Identifying the defining moment on any issue pertaining to a claim or entitlement. In that respect he referred to Bruce Norman Hull v ARCIC (per Judge Beattie) decision No. 249/97). [36] Mr Sharp also submitted, inter alia, that it is quite clear from the said 30 May 2002 letter that new issues had been looked at. He noted that the letter from Mr Wilson refers to the respondent having considered the 2001 review decisions. Mr Sharp then continued: “The respondent in the case of Ms Searle had once a review had been filed and served, changed its assessment and revoked its decision that the injury had been work related. A further factor taken into consideration was the ‘1 April 2000 statutory cut-off for Experience Rating Assessments’. It is submitted that these individually and collectively are fundamental and cardinal issues that change the issues for consideration by the Corporation from those that applied when the original decision was made.” [37] Mr Sharp also submitted that it appears from the said 30 May 2002 letter that the respondent has approached the matter from the basis that, despite its own determination that Ms Searle’s injury was not a work-related injury, it nevertheless, with knowledge of those new facts, decided not to adjust any premiums. Mr Sharp noted that fundamental to the calculation of the experience rating, in terms of s.104 of the 1992 Act, is the question of the injury being a “work-related injury” and the concomitant concept of a “qualifying claim”. [38] Mr Sharp submitted that, when properly viewed in relation to all the background and underlying circumstances, the 30 June 2002 letter from the respondent does constitute a decision and was capable of review. [39] Because of the reasoning I express below, it is not necessary for me to consider the other matters raised on behalf of the appellant; nor to summarise the submissions for the respondent, which are dealt with in my reasoning below. Reasons for Interim Decision [40] Section 134 of the 2001 Act (set out above) shows who may apply for a review of any decision made by the respondent. Pursuant to s.134(2), an employer may apply to the respondent for a review of a decision that a claimant’s injury is a work- related personal injury suffered during employment with that employer. Accordingly, under s.134 of the 2001 Act the appellant would seem to only have the right to apply for a review of a decision (in this case relating to a gradual process injury) made by the respondent in respect of a claimant in the appellant’s employment as to whether the said injury is work-related. That aspect is no longer in issue. [41] The 30 May 2002 letter from Mr Wilson advised the appellant that the respondent did not intend to undertake any experience rating adjustment. That is 10 what the appellant is seeking to review in the present case. That is a matter which is separate and distinct from cover for a work injury which has previously been determined at review. [42] It was submitted for the respondent that there is no provision under the 2001 Act for the appellant to apply for a review of a decision other than a work-related personal injury decision issued by the respondent. However, as I reason below, that may not be the end of this matter. [43] It was accepted by counsel that, in the ordinary course, the respondent has no power to adjust the experience ratings of employers after 1 April 2000 when the Experience Rating Regulations provided a statutory cut-off for Experience Rating reassessments. While it is suggested that, prima facie, this might appear to be inequitable to the appellant, there is the approach that the appellant was advised of its experience ratings on several occasions commencing from the time the claimant’s claim for cover was accepted. Each time the appellant was advised of these experience rating assessments, it was given the right to take them to review. That right existed under previous Acts. The appellant never lodged a review in respect of any of these Experience Ratings. Accordingly, it is submitted for the respondent that in the present case I have no jurisdiction to allow the appellant a right to review which does not exist under the present legislation. [44] Having said all that, there must be some Court procedure whereby the appellant employer can obtain a reduction in premium (or of levies) for an employee injury situation where cover has been subsequently quashed. [45] Mr Sharp focused on the effect of s.390(3) on this situation, which states that: “(3) In revising a decision, the Corporation must apply the Act that applied at the time when the decision being revised was made.” There is no dispute with that. Mr Sharp also referred to s.18 of the Interpretation Act 1999 which reads: “18. Effect of repeal on enforcement of existing rights – (1) The repeal of an enactment does not affect the completion of a matter or thing or the bringing or completion of proceedings that relate to an existing right, interest, title, immunity, or duty. (2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of completing the matter or thing or bringing or completing the proceedings that relate to the existing right, interest, title, immunity, or duty.” He submits that, because of that s.18, the repeal of the 1992 and 1998 Acts does not end the existing situation of the appellant’s rights in this case and that the earnings related assessment procedures, which previously existed, must still continue and that such rights could not have been intended to have been extinguished by the 2001 Act. [46] Mr Sharp then referred to ss.236 and 237 of the 2001 Act, and submitted that s.236(1) provides a wide right for an employer to have levies reviewed, and also that s.237 allows the respondent to remedy any “error” about levies payable by a person and that, if the respondent Corporation feels it has made a decision “in error” about levies, then it should revise it at any time. 11 [47] Miss Becroft submits that the said “decision” of Mr Wilson, which the appellant has attempted to review, is not a “decision” as defined in the 2001 Act and is then not capable of review as a “decision” under the 2001 Act. However, the choice made by Mr Wilson in that letter of 30 May 2002 is, in my view, a “decision” in terms of the meaning of that word and concept in the English language, and it would also seem to amount to a “decision” under the earlier legislation. Also to be considered is the effect of para (f) of the definition of “decision” in s.6(1) of the Act to which I refer below. [48] Sections 237 and 390 of the 2001 Act may not assist the appellant because they are based on the premise that the respondent Corporation has made a decision “in error”. It could be said that there would not appear to be any error in that Mr Wilson’s decision not to undertake any experience rating adjustment is deliberate and is probably one which accords with a commercial approach to the situation. However, if he does not have power to make such a decision, there would be an error. Possibly, a decision which is unfair is erroneous. Also, there must have been an initial error to categorize the claim as work-related when, apparently, it was not and that led to the error of increased levies or premiums on the appellant. It seems to me that the respondent should exercise its discretion to correct that error. [49] Quite apart from the existing rights which the appellant seems to have, the appellant is a person dissatisfied with that decision of Mr Wilson’s of 30 May 2002 and also, in terms of s.236(1), the decision seems to be in respect of a levy under the Act, so that the appellant has a right of review and “may seek a review by the Corporation of that decision within 3 months after the person is notified of the decision”. Apparently the appellant sought such a review but it has not been dealt with, so that there may be a deemed decision in favour of the appellant. The definition of “decision” in s.6 of the 2001 Act includes: “(f) a decision relating to the levy payable by a particular levy payer.” In any case, under s.237 if Mr Wilson considers that, when he wrote his letter of 30 May 2002, he made an error in all the circumstances about levies payable by the appellant, the respondent Corporation may amend or revoke that decision and substitute a fresh decision. In terms of fair play, I consider that it ought to do that; although the effect of, and philosophy behind, the 1 April 2000 statutory cut-off for experience rating assessments was not argued before me. [50] In terms of the issues as put by Mr Sharp, it seems that the 30 May 2002 letter of Mr Wilson does constitute a “decision” which gives a right of review. Mr Sharp submitted that if there has been a decision of the respondent, then the provisions of s.146 (deemed review decisions) of the 2001 Act apply because a hearing date for a review was not set within three months after the review application had been received by the respondent Corporation and the appellant did not cause, or contribute to, the delay; so that the Reviewer is deemed to have made a decision on the review in favour of the applicant as at the date which is three months after the review application was received by the respondent. I understand that the Application for Review was faxed to and received by the respondent on 27 June 2002, so that the review decision would be deemed to have been issued in the appellant’s favour on 27 September 2002. However, the parties may like to argue the effect of s.146 on the circumstances of this case. [51] It would also seem that the Review Officer had jurisdiction on 22 October 2002, but there needs to be further argument about that. 12 [52] Section 393 of the 2001 Act deals with levies, premiums, and other payments under former Acts, and it would seem that s.457 of the Accident Insurance Act 1998 continued to apply to any levy or premium paid or payable under the ACRI and that, in terms of s.393 of the 2001 Act, the regulations relating to experience rating continued in force in respect of any obligation arising on or after 1 July 1999 and before 1 April 2002. The decision by the respondent Corporation that the insured’s injuries were not work-related occurred before 1 April 2002 and was made on 3 September 2001. [53] I understood a submission from Mr Sharp to be that the regulations, in terms of s.104 of the ARCIC as applied in 1994, determine the present situation to the effect that the said letter from Mr Wilson referring to experience rating adjustments being terminated after 1 April 2000 has no legal relevance to this matter, and should not have been considered. [54] Mr Sharp put it that this is a situation where it has been determined that at law there was never a work injury, so that the respondent Corporation never had power to issue an experience rating assessment which at law dealt with “work injury” as a “qualifying claim”. [55] Mr Sharp also submitted that even if one accepts that the applicable regulations arise under the 1999 Amendment of the Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations, then in terms of Regulation 21A and in particular Regulation 21A(4), the respondent had the necessary authority to make an adjustment to the premiums. Regulation 21A provides that in terms of s.21A(4) the Corporation: “may at any time after a review or appeal under the Act becomes final and conclusive, whether before or after 31 March 2000, make any alterations to an assessment that is necessary to make the assessment comply with the decision on the review or appeal.” [56] Mr Sharp submitted further that the provision in Regulation 21A(1) that: “this regulation applies when the Corporation has not complied with Regulation 21 before 1 April 1999”, must be taken to mean that it applies where the Corporation has either not issued an Experience Rating Assessment or the Experience Rating Assessment issued is one that at law could not be issued. In other words, one where there was no basis at law for doing so: at law in such circumstances there could never be a compliance with Regulation 21. [57] It seems to me that an employer cannot be precluded from questioning the nature of an earnings rating assessment, particularly where it has been established that, at law, there were no grounds at the outset to make such an assessment rating. It must be fundamental to the experience rating process that a work injury has occurred. The respondent, knowing that there has been a decision that there is no work-related injury in this case and that the existence of a lawful work-related injury is pivotal to the issue of the qualifying claim, cannot ignore that decision and fail to address premiums. In refusing to do this the respondent must be exercising a discretion not only on a wrong principle, but by ignoring a principle laid down in the statute, and must be acting unreasonably. 13 [58] My current view is that quite important jurisdictional issues arise in this case, and were not thoroughly enough canvassed by both parties in submissions before me. The parties seemed to contemplate that if I find a Review Officer would have jurisdiction to handle this matter of the effect of Mr Wilson’s letter of 30 May 2002, the case should be referred back to a further review hearing. However, I am seized of the situation at present and I currently prefer to endeavour to resolve it at this level in its entirety. [59] Accordingly, at this stage I make no formal finding or order, but direct that there be a Directions Hearing before me, to be arranged by the Registrar, to formulate a timetable for parties to make further submissions on the effect of this interim decision or, as the preference may be, to fix a date for a resumed hearing, i.e. I feel that the issues need further argument and elucidation. _____________________________ Judge P F Barber District Court Judge Wellington ai662-02 and ai663-02.doc(aw)