Zehinder v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT NEW PLYMOUTH Decision No. 73 /95 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 67/ 95 / 2104 BETWEEN JANET HEATHER ZEHNDER of Eltham Appellant (Appeal No. DCA 287/94) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 20th day of June 1995 APPEARANCES B R Harvey for appellant A D Fawcett for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the decision of the respondent on 12 September 1994 declining to accept a late application for review. 2 The appellant suffered personal injury by accident on 7 February 1990 when she twisted her ankle. The appellant received Earnings Related Compensation until the respondent notified her on 12 November 1993 that, pursuant to s.73 of the Accident Rehabilitation and Compensation Insurance Act 1992, she no longer met the test of incapacity and that accordingly payments of weekly compensation would cease as from 17 November 1993. The letter notified the appellant that if she was not satisfied with that decision she was entitled to apply for a review using "a special form which is available from each office". The letter also notified the appellant that a written request for a review must be received within three months of the date of that letter. It appears from the file that in January 1991 the appellant had discussed the decision with a number of the respondent's staff, but had indicated at that time that she wished to consult her Orthopaedic Specialist prior to making a decision in relation to a review of the respondent's decision. On 22 February 1992 the appellant lodged an application for review with the respondent. The respondent rejected the application because it had not been made within the three month limitation provided in s.89(5) which decision was confirmed by the Review Officer following a review hearing. Mr Harvey submitted that the crux of the matter was the interpretation of s.89(5) which provides: "That a person who is dissatisfied with any decision of the respondent can apply for a review and that an application pursuant to this section - (6 ) In any other case, an application in the prescribed form may be made 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." Mr Harvey submitted that in common parlance the use of the word "may" has permissive rather than imperative connotations. He submitted that the wording of the section can be contrasted to the provisions of s.101(2) of the Accident Compensation Act 1982 which provided that an application for review "shall" be made within one month after receipt of the notice of the decision. He submitted further that s.91(3) of the 1992 Act, which makes provision for an appeal against a review decision, uses the imperative word "shall be brought" within 28 days after notification of the decision. Mr Harvey referred me to s.5(j) of the Acts Interpretation Act 1924 and submitted that the Act should be given fair, large, and liberal interpretation. He submitted further that while the 1992 Act refers to the fact that the Corporation is a Body Corporate and shall be capable of "doing and suffering all such acts and things as a company may do and suffer", the 1982 Act provided that the then Corporation was to have the powers of a Body Corporate. He submitted that this implied that the respondent could exercise wide discretionary powers. He submitted further that if the respondent does not have 3 the discretion to entertain a late application for review some intolerable injustices could occur. I do not accept Mr Harvey's submissions. In my view, the submissions by the respondent correctly set out the manner in which the section should be interpreted. The use of the word "may" must turn on the context in which it appears. If I accept the appellant's argument then there would be no time limit imposed on a claimant bringing a review application. The section must be read as a whole with the result that it provides a right for a claimant to seek a review in subsection (1) and by subsection (5) provides the time limitation within which the application for a review must be made. The respondent submitted further that it is clear from the legislation that a time limit was imposed in respect of review applications and no discretion was provided similarly to that provided by s.91(3) which permits an appeal to be brought within 28 days "or such later date as the Court may allow". I accept the respondent's submission that the reference to the fact that the respondent is to act in the carrying out of its functions "as a company may do and suffer" does not assist the appellant's argument. Those provisions do not relate to the specific questions of review on appeal, but relate more to the respondent's power, duty or function in paying compensation, and vests the respondent with the necessary powers to carry out its functions and duties. I consider that the provisions of s.89(5) are quite clear and do not provide any discretion to permit the lodging of an application for a review beyond the period of three months. Accordingly, the appeal is dismissed. DATED at WELLINGTON on the |2 day of July 1995 readula A W Middleton District Court Judge dc287-94.doc(mh)