Schoonderwoerd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 78/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN HELEN ANNE SCHOONDERWOERD of Newmarket, Auckland Appellant (Appeal No. DCA 318/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of April 1997 APPEARANCES Appellant in person T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the respondent was correct to cease the payment of weekly compensation pursuant to section 73(2)(a) of the Accident Rehabilitation and Compensation Insurance Act 1992 because of the appellant's unreasonable failure or refusal to apply information required by the respondent. 2 The appellant had been granted weekly compensation as a result of a back injury suffered on 15 July 1989 while working as a housemaid in a hotel. On 7 March 1996 the respondent sent to the appellant a requirement that she complete a Statutory Declaration stating her current residential address. The letter said that the request was made in order to facilitate an appropriate rehabilitation plan. On 19 April 1996 the respondent declined any further payment of weekly compensation because the appellant had indicated through her solicitor that she would not provide the information requested. The appellant sought a review of that decision which was unfavourable. It is against that decision which the appellant now appeals I gave leave to the respondent to call evidence from Mr Sean Netherway, the appellant's Case Manager. He said that when he took over the appellant's file he discovered that for some reason her residential address was not on the file and the only method of communication was through a post office box number. He said that in order to set up an appropriate rehabilitation plan it was necessary to know the area in which the appellant lived so that the plan would avoid unnecessary travel or other difficulties for the appellant. While I gave the appellant leave to cross-examine Mr Netherway, the cross- examination did not deal with the specific issue before me. The requirements of section 64(1) are that every claimant for rehabilitation or compensation shall, when reasonably, so required to do by the respondent furnish to the respondent such relevant information as it requires. The failure to provide such information empowers the respondent to decline to make any payments under the Act. I advised the appellant that in my opinion the requirement to provide the residential address was reasonable having regard to the fact that the respondent wished to facilitate an appropriate rehabilitation plan for the appellant. While the appellant was concerned that she had in the past had rehabilitation plans arranged, she had done so without providing a residential address and considered it to be unnecessary. I accepted Mr Netherway's evidence that a residential address is normally required in order to make the appropriate plan and that the failure to do so must have been overlooked by a previous Case Manager. While the appellant had submitted to me that she was concerned that disclosure of her residential address might permit an invasion of her "personal and private space", I do not accept that such a problem could occur. The appellant also suggested that the statement that it was required for the implementation of a rehabilitation programme was some subterfuge on the part of the respondent. As I explained to the appellant she had indicated in her submission to me that when she received the request from the respondent to provide her residential address she had sought legal advice as a result of which she declined to complete the declaration. I questioned her on this advice and she acknowledged that she had been told by her Barrister consequences of failing to provide the information but continued to decline to give the address. 3 I suggested to the appellant that it was in her own interest to provide the information because I consider that it was a reasonable request. The appellant then agreed to provide me her current residential address which she wrote on a piece of paper which I have now attached to the respondent's main file volume 2. In accordance with my arrangement with the appellant, the appeal will now be allowed but on the basis that, in spite of her knowledge of the requirement of the Act after consultation with her legal advisor, she must bear some of the responsibility for what has occurred. Accordingly, the payment of weekly compensation will be reinstated as from 2 July 1996 being the date on which the review hearing was conducted and when it would have been appropriate for the appellant to have provided to the Review Officer the information which she has now given the Court. I have subsequently received a request for costs from the appellant. If the appellant had been represented by counsel in a successful appeal then an award of costs on the appeal may have followed the event. In this case the appellant was not represented and had brought the appeal in spite of the fact that she had received legal advice regarding the requirements of the Act, the subject of the appeal. The application for costs is declined. DATED at WELLINGTON this 29 day of April 1997 A W Middleton District Court Judge dc318-96.doc (nr)