Coulter v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT HAMILTON Decision No. 102 195 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 59 94/ 00 31 BETWEEN IAN GLADWIN COULTER of Hamilton Appellant (Appeal No. DCA 208/94) 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 August 1995 APPEARANCES Appellant in person A D Fawcett for respondent DECISION OF JUDGE A W MIDDLETON The appellant claimed reimbursement for clothing damaged as a result of an accident on 3 February 1992 but the claim was declined by the respondent and that decision was confirmed following a review hearing. 2 The appellant suffered a broken leg and degloving of the lower right leg when he fell while refuelling a bulldozer on 3 February 1992. He received treatment from the Waikato Hospital on that day and was off work for four weeks. Apparently his clothing was damaged in the fall and on 12 June 1992 he applied to the respondent for reimbursement of the damaged articles. The total replacement cost was $140. The respondent advised the appellant to replace the clothing and to produce the necessary receipts so that reimbursement could be made. It was not until 26 November 1993 that the appellant submitted receipts for the cost of the replacement clothing. By mistake the respondent declined the claim on 8 December 1993 on the grounds that the application had not been made within 12 months of the date on which personal injury was suffered. However on 14 December 1994 the respondent advised the appellant that pursuant to s.149 of the 1992 Act the appellant had until 31 December 1992 in which to apply for reimbursement. Accordingly the claim was declined. Under s.77 of the 1982 Act the respondent was empowered to reimburse the cost of clothing damaged where an applicant suffers personal injury by accident and provided notice of the damage or loss is given as soon as practicable after the accident. Under the Accident Compensation (Damaged or Lost Artificial Limbs, Aids, Clothing, and Spectacles Costs) Regulations 1990 the respondent is empowered to pay the cost of replacement of items damaged as a result of personal injury by accident but can only pay when the claimant submits sufficient verification of the cost of the damaged articles. Under s.99 of the 1992 Act any claim for assistance needs to be supported by sufficient evidence or information as the respondent may require in order to enable it to assess the amount to be paid and in the event of a failure to supply such evidence the respondent may withhold assistance. Under s.135 of the 1992 Act a person who has had a claim accepted for personal injury by accident under the 1982 Act which personal injury was suffered before 1 July 1992 is deemed to have suffered personal injury that is covered by the 1992 Act. Under s.149 of the 1992 Act a person who has been receiving compensation under s.80 of the 1982 Act immediately before 1 July 1992 shall have that compensation continued until 31 December 1992 under the provisions of the 1982 Act as if it had not been repealed. 3 The appellant told me that he had not been aware of the provisions of the new Act. He said that he had originally submitted the damaged clothes to the respondent in June 1992 but that he was not given any other forms or papers and he subsequently became aware that the law changed in December 1992. He was however adamant that he had made a claim before December 1992 when he submitted his damaged clothing. He considered that having done that there was a duty on the respondent's staff to notify him when the law was about to change. He said that his leg was severely swollen at the time and it was not until the swelling had gone down, which was in November 1993, that he was able to contemplate the purchase of new clothing. He said that because of the size of his leg and foot he did not know the ultimate sizes to purchase and was not therefore in a position to make any claim until the position of his leg had stabilised. Mr Fawcett submitted that the Corporation is unable to pay any compensation under s.77 of the 1982 Act after 31 December 1992. It appears from the evidence that while the appellant was absent from New Zealand for four months from 12 June 1992 he had returned on 2 October 1992 so that he still had an opportunity to comply with the provisions of the Regulations before 31 December 1992. The Court has had occasion to consider the provisions of s.147 and did so in Webster v ARCIC (decision 22/94) in which it was held that there is no discretion in the Act which would permit the respondent to pay compensation if an applicant has failed to meet the time requirements of the Act. While I can appreciate the appellant's situation that he could not purchase the clothing until the condition of his leg had stabilised, the time requirements provided by the Act do not permit any relaxation whatsoever. This does appear to me to be a case where the appellant would clearly have been entitled to payment for replacement of the articles and it was quite reasonable for him to delay application until he was able to properly assess that his leg had stabilised. In these circumstances the respondent may see fit to consider an ex gratia payment. However as I have already stated there is no discretion available to me and the appeal must be dismissed. DATED at WELLINGTON this 23 id day of August 1995 A W Middleton District Court Judge DC208-94.doc(J9)