Richards v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 195 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN JUDY MARY RICHARDS Appellant (Appeal No. DCA 418/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at AUCKLAND on the 21st day of August 1998 APPEARANCES Mrs J M Richards in person Mr C W Bright - counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE There are two issues for determination in this appeal. 2 (i) Whether the Corporation was correct to decline to accept an application for review of one of its decisions not lodged within three months after the date of its decision. (ii) Whether the Corporation was correct to reject a claim for cover from the appellant dated 15 October 1996 on the basis that it was a duplicate of a claim previously lodged. Background Facts On 30 July 1992 the appellant lodged a claim for cover in respect of muscular strain and tendonitis of her right forearm. That injury was subsequently identified as Carpal Tunnel Syndrome and she subsequently underwent surgery for release. On 3 March 1994 the Corporation ceased payment of entitlements to the appellant in respect of that injury on the grounds that she had no on-going incapacity . At the appellant's request the Corporation reviewed its decision to cancel but by decision dated 12 December 1995 it issued a decision confirming its earlier decision to cancel entitlements. By letter dated 16 August 1996, but received by the Corporation on 3 October 1996, the appellant sought a review of that decision of 12 December 1995. On 15 October 1996 the appellant lodged a new claim for cover in respect of right forearm and elbow pain caused by repetitive stamping of mail in mailroom. That by decisions dated 19 November 1996 and 22 January 1997 respectively, the Corporation declined to accept the appellant's request for review of its 12 3 December 1995 decision and it declined to accept the appellant's claim for cover, contending that the same was a duplicate of the claim already filed in July 1992. The review hearing of those two decisions was heard at the one time and the Review Officer held firstly that there was no power to extend the time for the making of an application for review beyond the three months provided in the Act and secondly that the medical evidence established that the injury for which cover was sought was in fact a re occurrence of her previous injury. The Review Officer stated in his decision as follows: "In view of this evidence (the medical evidence) I confirm the Corporation's decision in this regard and the application for review is unsuccessful. The question of the applicant's entitlement to on-going weekly compensation is not within my jurisdiction and any decision in respect of this is for the Corporation to make. However I would draw the Corporation's attention to the fact that according to Mr Tasman-Jones (Orthopaedic Surgeon), the applicant is currently restricted to light duties only and is expected to be so restricted from time-to-time in the future". The appellant lodged an appeal to this Court in respect of the Review Officer's decision but one would have thought that in the light of Mr Tasman-Jones' opinion, the issue of her entitlement to compensation ought really to have been resolved by the making of another primary decision in respect of her injury, clearly established as it was. For whatever reason this has not been done and both matters are before this Court and the question of the duplicate claim is very much one which this Court must consider with blinkers. 4 In so far as the request to have the Corporation's decision of 12 December 1995 reviewed, the very earliest that request could be said to have been made was 16 August 1996, that request being well outside the three month period provided for in s.89(5) of the Act. This issue has come before this Court on a number of occasions and various Judges who have considered it have been unanimous in their view that the provisions of s.89(5) afford no discretion to extend the time for lodging an application for review. Contrasted as that provision must be with the provisions of s.91(3) of the Act which give a clear discretion to this Court to consider a late notice of appeal filed outside the prescribed 28 day period provided for lodging appeals against decisions of Review Officers. I confirm this Court's view that there is no discretion available to extend the time for lodging a review and therefore the Corporation was quite correct to rule that late request could not be considered. In so far as the question of the filing of a duplicate claim is concerned, the injury was identified by the appellant's GP Dr Ruge as being "right forearm and elbow pain syndrome". On receipt of this claim the matter was referred to Dr T C Tasman-Jones, Hand and Upper Limb Surgeon, who had previously treated her in 1993. In his advice dated 30 July 1996 he stated that the appellant had reactivated her chronic pain syndrome due to increased workload, in particular having to use a computer. In answer to a question "is this problem still related to the pain problem which began in June 1992 or are there more recent factors involved?" Mr Tasman-Jones replied "Yes her problem is due to a reactivation of her pain problem". Whilst the Review Officer had this advice, he considered further advice from Mr Tasman-Jones would be desirable and after the review hearing he sought further advice from Mr Tasman-Jones, particularly in the light of the changed diagnosis made by Dr Ruge. Mr Tasman-Jones was asked to advise whether he still 5 considered the appellant's on-going problems with her right arm were due to a reactivation/ exacerbation of the symptoms which began in June 1992. In his reply Mr Tasman-Jones stated that the latest episode was not a new injury but a recurrence of her symptoms due to reaggravating of her chronic condition. In response to the specific question, his answer was "No. What she has done is reactivated her multi-level pain syndrome because of a return back to doing repetitive work". Following that advice the Review Officer gave his decision that the claim for cover made by the appellant on 15 October 1996 was rightly rejected as being a duplicate of her earlier claim. The Review Officer went on to make the observation as previously noted in this decision but for some reason the appellant's claim for entitlements under her original cover appear not to have been addressed by the Corporation down to the present time. The appellant did not seek to argue against the medical opinion of Mr Tasman- Jones and in fact did not seek to advance any matter which would support the appeal on this issue. She did highlight the fact that she considered that her case had been badly mishandled by the Corporation, and the events leading up to this appeal would tend to give support to this. The evidence from Mr Tasman-Jones is clear that the circumstances of the injury as advised to the Corporation in the claim of 15 October 1996 by Dr Ruge were a reactivation and/ or exacerbation of the earlier injury which had been accepted by the Corporation as giving rise to cover and entitlements. Whilst the Corporation was correct to reject that second claim, it ought at the same time to have advised the appellant that she was nevertheless eligible for entitlements under the umbrella of her earlier claim. The Corporation was, after all, putting forward that as the reason why the second claim could not be accepted. 6 The jurisdiction of this Court in this appeal does not extend to any further pronouncement save to confirm the Review Officer's decision in so far as duplicity of claims is concerned but nevertheless it does express its concern that the entitlements of this appellant as a consequence of the reactivation of her injury have not been addressed by the Corporation. For the avoidance of doubt, this Court would hold that the medical evidence clearly establishes that the appellant did suffer further complications of the injury originally sustained in June 1992 and that she should have cover accordingly under that particular claim. DATED at WELLINGTON this * day of September 1998 leather M J Beattie District Court Judge 41897.doc(sh)