JMG v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 15 /2000 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JMG Appellant (Appeal No. Al 13/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from the appellant and from the respondent with a request that I issue a decision on the papers. Because of the sensitive nature of the appellant's injury, there will be an order that there is to be no publication of any of the details which might lead to the identification of the appellant. The file will therefore note that the appellant is "JMG". The issue in this appeal is whether the appellant is entitled to an additional lump sum award under section 119 of the Accident Compensation Act 1972. The facts which give rise to this appeal are that on 17 May 1991 the appellant completed an advice of injury form which was supported by a letter to the respondent from her then Solicitor. The appellant had suffered personal injury by accident arising out of an unreported rape that took place in 1978. The appellant received counselling in relation to the incident through the HF Help Foundation but no further action was taken by way of a claim to the respondent until 1991. Subsequently the appellant was examined by Dr M Honeyman who provided a full report on 19 May 2 1992. In that report Dr Honeyman outlined the events which had occurred and the subsequent effects that it had on the appellant's life. She also assessed the appellant's permanent functional impairment as being between 5 and 10%. As a result of that report the respondent granted cover and made a lump sum award of $10,000 under section 120 of the 1972 Act and an award of $7,000, representing 10% of the maximum available under section 119. Payment was made to the appellant on 28 August 1992. On 28 September 1992 the appellant applied for a review of the award under section 119 although the application for review incorrectly refers to section 78 which was, in fact, the relevant section under the 1982 Act. However, as the incident occurred in 1978 the applicable Act was the Accident Compensation Act 1972 which, in so far as the appellant is concerned, is preserved by s. 135 of the Accident Rehabilitation and Compensation Insurance Act 1992 In her application for review the appellant claimed that she had taken ten years to recover from the incident and considered the amount of 10% "to be too little." In March 1994 the respondent requested the appellant's then Solicitors to provide their submissions in respect the review and on 16 March 1994 the Solicitors replied that their instructions were that the appellant no longer wished to proceed with the application for review. On 23 February 1999 the appellant requested the respondent to reopen her file on the grounds "that money received in the claim was less than money I was entitled to." The matter then proceeded to a review hearing but as the appellant did not attend the hearing the Review Officer issued a decision on the papers declining the application. It is against that decision which the appellant now appeals. In her notice of appeal the appellant has referred to section 119 and 120(6) of the Accident Compensation Act 1972. I note that on the copy of the review decision, which the appellant submitted with her notice of appeal, she has indicated in her own writing that the maximum award under section 119 was $17,000. This is incorrect. The maximum award available under section 119 of the Accident Compensation Act 1972 is $7,000 but under the 1982 Act, which is not in issue in this appeal, that the amount had been increased to $17,000. The appellant, for the first time, has raised the question of section 120(6) which permits the respondent, if it considers that the lump sum awarded under section 119 is inadequate and having regard to the special circumstances of the case, it may make an additional lump sum award provided the lump sum payable under section 119, together with the lump sum payable under section 120, does not exceed in total $17,000. As no application was made by the appellant to the respondent to invoke the provisions of section 120(6), the respondent has made no decision on that issue so that neither the Review Officer nor the Court has jurisdiction to consider it. 3 In so far as the question of an increase in the award under section 119 is concerned, the respondent cannot make an increase in that award without a certificate from a registered medical practitioner as required by section 120(9). The only certificate provided by the appellant is the assessment by Dr Honeyman which resulted in the respondent making a payment at the top of the range assessed by Dr Honeyman. While the appellant had withdrawn her application for review, the respondent has not taken issue with that and consented to the review being heard. For the reasons I have outlined, the appeal must therefore fail. The appeal is dismissed. DATED at WELLINGTON this 2 day of February 2000 A W Middleton District Court Judge ai13-99.doc (nr)