Moore v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT PALMERSTON NORTH Decision No. | 28 /98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN JOAN BETTY MOORE DCA 316/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 26th day of May 1998 APPEARANCES: Mr A R Rowlett for appellant Mr B. A Corkill for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal as framed by the appellant's advocate is whether the Corporation was correct in its decision not to declare an independence allowance assessment void. 2 BACKGROUND The appellant has cover under the Act in relation to a back injury sustained in February 1994. She has received various entitlements in relation to this injury and indeed she has had other claims ongoing under the Act as well. On 23 January 1997 the appellant had an interview with her Case Manager in which various matters were discussed including a discussion regarding assessment for an independence allowance. The diary note made by the Case Manager states: "Refer for IA assessment - No lump sums in past - explained questionnaire and left fact sheet." An assessment for independence allowance was carried out on 27 March and by letter dated 4 April 1997 the Corporation advised the appellant of that assessment which was to grant her a disability allowance based on 49% entitling her to the sum of $9.85 per week. On 19 May 1997 the Corporation received a letter from the appellant's advocate Mr Rowlett which stated: "I attach copy of authority to act yet with a request from Mrs Moore to make void her recent assessment of independence allowance. The grounds for making that assessment void are the fact that Mrs Moore was confused by the assessment and did not consider she had sufficient time to think regarding the answers. Also, she was not aware that her answers should relate to all of the claims accepted by the Corporation rather than just the latest accident. Mrs Moore advises that after looking through the questionnaire following the assessment she considers that a number of 3 questions would have been answered differently had she been given sufficient time to consider them fully. I would be grateful if consideration could be given to this request and a further assessment arranged to be carried as soon as possible. If this request is not granted please advise immediately in order that Mrs Moore may take advantage of the review rights before they expire." The Corporation responded on 13 June advising that the independence allowance assessors are fully trained in the assessment process and claimants are given prompts where responses are inadequate. The request for the assessment was declined. It is to be noted that this letter did not contain the usual advice of review rights that is given in what may be described as "decision" letters. The appellant's advocate thereupon requested that the Corporation carry out the first reassessment of the appellant's independence allowance and in addition advised that the appellant wished to have the decision not to declare void the first assessment reviewed. Subsequently the appellant was advised that the request for a further assessment would be considered and in fact a reassessment was undertaken in July 1997 and that reassessment established exactly the same percentage of disability as the first assessment. In submissions to this Court Mr Rowlett, the appellant's advocate, submitted that. Regulation 3 of the Accident Rehabilitation and Compensation (Independence Allowance) Regulations 1993 requires the Corporation to arrange for an assessment of the claimant's degree of disability upon receipt of a written application from the claimant for payment of an independence allowance. He states that there was no such written application from the claimant in respect of the first assessment and that therefore the assessment was made ultra vires and was invalid. Mr Corkill, counsel for respondent, submitted that there was no decision which was capable of a right of review and that indeed the Review Officer was in error in accepting jurisdiction to hear a review of this matter. At the hearing this Court indicated to counsel for the parties that its preliminary view was that indeed there was no decision of the Corporation which was reviewable and thereafter appealable and this view is hereby confirmed. This Court on appeal does not have any statutory power of judicial review and there is nothing in the provisions of sections 91 or 92 of the Act which would enable it to declare any action of the Corporation void. The action which the Corporation undertook was purely administrative and was not affecting the rights of the claimant and the mere fact that the initial assessment was carried out without first having obtained a written application for same from the claimant is purely a matter of procedure and not something which can be the subject of an appeal. This whole appeal has been misconceived and it certainly ought to have been picked up before reaching the stage of a hearing in this Court. Accordingly this appeal is dismissed. DATED at WELLINGTON this 16 day of June 1998 M J Beattie District Court Judge