Dennis v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 193 199 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 DENNIS DCA 538/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 21s day of May 1999 APPEARANCES: Mr J R Dennis advocate for appellant Ms A H Cecil-Gibson counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE There are two issues for determination in this appeal. Firstly, whether the respondent was correct in its decision to discontinue the appellant's entitlement to an 2 independence allowance. Secondly, whether the respondent's decision of 30 January 1998 to decline the appellant's request for Home Help could be the subject of an application for review. BACKGROUND In January 1998 the appellant, then aged 80 years, made an application for Home Help said to be necessary as a consequence of a neck injury which she had sustained in 1976 and in respect of which she had been granted cover at that time. Her Home Help assessment was carried out on 27 January 1998. By letter dated 30 January 1998 the appellant was advised that her request for Home Help had been declined. The reason given was that the appellant was not performing the tasks that the assistance was required for at the time the injury had been sustained. The letter declining entitlement advised the appellant that if she wished to apply for a review of that decision she would need to make application in writing within three months of the date of that letter. It is noted that the appellant had ongoing contact with the respondent relating to reimbursement for transport costs but there was no request for a review of the respondent's decision of 30 January 1998. In May 1998 the appellant's case manager spoke with the claimant and she inquired as to what further assistance she might be able to receive and she was advised that she could make application for an independence allowance and an application form was duly provided. An assessment for an independence allowance was duly carried out on 21 July 1998 by Dr A Mcdonald, an approved assessor. His assessment, based on the AMA Guides for the Evaluation of Permanent Impairment (4" Edition), was that the appellant had a 5% whole person impairment. On 1 September 1998 the respondent advised the appellant that it was declining her application. The letter noted that the appellant had received a lump sum in 1993 based on a 20% disability and that the fact that that percentage had to be deducted from the independence allowance assessment meant that she was left with a nil impairment and therefore no entitlement arose. That decision letter also advised that the appellant had a right of review, to be exercised within three months. The appellant duly lodged an application for review on 16 September 1998. In a letter accompanying the application for review the appellant indicated that she was seeking that the respondent reconsider its decision not to grant her a Home Help allowance. At the review hearing the appellant advised that at the time she received the letter of 30 January 1998 declining Home Help her husband was critically ill and she put the letter to one side and it was not until she was dealing with the independence allowance matter and that it was brought to her attention. Insofar as the independence allowance decision was concerned, the appellant queried the assessment, particularly noting that for the purposes of lump sum settlement a disability of 20% had been established. since which time she had suffered deterioration and yet whole person impairment of only 5% was assessed. She did not understand how this could come about. In her decision the Review Officer ruled that the provisions of section 89(5) of the Act determined that an application for review must be made in writing within three months of the date of the decision and that no such application was made by this appellant. She ruled that in those circumstances she had no jurisdiction to consider the question of Home Help on its merits. 4 Insofar as the independence allowance as she was concerned, the Review Officer noted that a new system of assessment had come into being and that she found that the assessment had been carried out in accordance with the criteria required under the AMA Guides and that no evidence had been produced to show that that assessment may not have been carried correctly. In those circumstances the Review Officer ruled that the review was unsuccessful. When the matter came on for hearing before this Court Mr Dennis, representing his mother, noted the submissions which had been filed by the respondent and believed that that would be the end of the matter. I advised Mr Dennis that whilst it was open to him to make submissions in support of the appeal, on the evidence before the Court and having regard to the settled legal position, this appeal had no prospect of success. Mr Dennis accepted that fact and in reality did not seek to make any submissions against that observation. This decision confirms the advice given to Mr Dennis at the time of the hearing that this appeal must be dismissed. Insofar as the first issue is concerned, I confirm that the legal position is that the three month period provided for in section 89(5) is mandatory and unless an application for review is filed within that period, such an application cannot be received and acted upon. Neither this Court, nor at first instance a Review Officer, has any discretion to extend that statutory time limit and this Court has so held that that is the legal position on a number of occasions in its previous decisions. That statement of law is confirmed in respect of this appellant. Insofar as the claim for an independence allowance is concerned, again the position is that the Review Officer had evidence that an assessment had been carried out by a duly appointed assessor and that assessment confirmed a whole person impairment of 5%. There has been no evidence adduced either to the Review Officer or 5 subsequently to suggest that the doctor carrying out the assessment did not do so in accordance with the requirements of the AMA Guides. In those circumstances this Court is not in a position to question that assessment and must and does accept it as being correct. In those circumstances the appellant has no entitlement to an independence allowance as section 54(1) of the Act requires that there be a minimum whole person impairment of 10% before an entitlement to an allowance arises. That section goes on to state that any percentage of whole person impairment so assessed must have deducted from it any percentage for any prior lump sum settlement which had been made to the appellant. In this case the appellant has already received a lump sum assessed on a 20% disability. Thus, the 5% would need to have deducted from it 20% which of course produces a negative, and therefore effectively a nil percentage, and as such no entitlement to an independence allowance can arise. For the foregoing reasons this appeal is dismissed. DATED at WELLINGTON this 1. " day of Inis 1999 M J Beattie District Court Judge DCA538-98dennis.doc