Buckland v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 3/ 195 HELD AT WELLINGTON 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 65/ 95 04 81 BETWEEN K J BUCKLAND Appellant (Appeal No. DCA 205/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 22nd day of April 1996 APPEARANCES Mr G L Evans for appellant Mr A R Davie for respondent DECISION OF JUDGE D A ONGLEY The appellant suffered a back injury on 15 May 1986 and was paid weekly compensation until August 1986 when his medical certificate expired and his claim file was closed. In December 1993 the appellant raised a question about lump sum payments under the Accident Compensation Act 1982 and on 28 March 1994 the Corporation wrote to the appellant's solicitors declining to consider payment of lump sums because of the late election which had been made after the closing dates specified in the transitional provisions of the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant filed an application for review of the Corporation's decision but through some manner of oversight the review was not acted upon and the three month period specified in s 90(9) of the Act was allowed to pass. That subsection provides that where the hearing of a review has not been commenced within three months after the lodging of ine application for review, and the uclay is not caused of contributed to by the applicant, the application shall be deemed to have been determined in favour of the applicant. - 2- The Corporation accepted that's 90(9) operated in this case, but nevertheless it declined to allow a lump sum claim for the reason that despite the operation of s 90(9) it could not make any payment for which it had no statutory authority. On 9 August 1994 the Corporation wrote to the appellant's solicitors notifying that the subsection cannot require the Corporation to do something which it has no statutory authority to do, and that accordingly the decision of 28 March 1994 stands. The letter contained a notice of rights of appeal to the District Court within 28 days of notification of the "review decision". It was evident that the Corporation regarded the 9 August letter as a decision, but it dressed it up as an affirmation of an earlier decision and attributed rights of appeal as if the question had passed through the review process, as indeed it had. The appellant's object was to compel the Corporation to accept liability for lump sum compensation, but it had no further avenue under the Act than to seek a review of or appeal against the Corporation's refusal following the determination by operation of law under s 90(9). The appellant decided not to appeal but to review the Corporation's decision contained in the letter of 9 August. That review came on for hearing on 2 August 1995. The Review Officer was confronted with a rather intractable problem. The factual background disclosed that no timely election to receive lump sum compensation had been made under the transitional provisions within the prescribed time limit. A number of District Court appeal decisions had held that there was no avenue for a lump sum award in the circumstances of this appellant's claim. The Corporation had an equally clear policy or a view of interpretation of the Act that it was not entitled to make any payment outside the scope of its authority under the Act, and that the "deemed" determination in this case could not be given effect. The Corporation effectively viewed the s 90(9) determination as a nullity. The Review Officer concluded that he had no jurisdiction and adopted the reasoning that s 91 of the Act gives a right of appeal to a District Court against a decision under s 90 and that the subject matter of the review was in fact a decision under s 90 so that it should properly go to appeal and could not be the subject of a review. That is a paraphrase of the Review Officer's decision, but it captures the reasoning that was applied. In this appeal, the appellant contends that the Review Officer has simply not grappled with the point of the review, but has taken a view that was not argued on review and which is either wrong or only incidentally connected with the question before the Review Officer. The appellant submits that the letter of 28 June contained a new decision which was itself open to review and which was not the same determination as the deemed determination which had come about through the operation of s 90(9). The Review Officer did not deal with that new decision but purported to consider an earlier determination and to decline jurisdiction. I think that argument is sound. The appellant for obvious reasons had no wish to appeal against the determination under s 90(9). To advance the matter it had to attack the Corporation's refusal to implement the determination. That refusal was expressed as a decision of the Corporation in the letter of 9 August 1994. The question that the Review Officer had to determine was whether the Corporation was correct in its decision not to implement the statutory determine which had occurred by virtue of s 90(9). - 3 - On this appeal, the appellant submitted that the Corporation's decision of 9 August 1994 cannot be equated with a decision under s 90(9), and that in fact there has never been a decision under s 90 and there was no decision which could have been the subject of appeal, as opposed to review. The language of's 91 deals with a decision made by a Review Officer, it does not contain words designed to deal with a statutory determination made in default of a timely review. Section 90 itself deals with 'decisions" but in subs(9) it uses the word "determination" which is capable of being viewed in contrast with the word "decision" and as indicating something different. The respondent made the submission that if's 91 was not intended to deal with s 90(9) outcomes it would have used the expression "a decision of a Review Officer". The appellant's reply to that was that such a mode of expression would have been a splendid superfluity. In Brooker's Accident Compensation there is a note that either party may appeal against such a determination, but there is force in the appellant's submission that there is no available appeal, because there is no decision and the only remaining question is, usually, whether the Corporation will implement the determination. Depending on the circumstances, there may be cases of doubt about what the determination means, and it would be appropriate for the Corporation to express its understanding of the meaning of the determination by a further decision which can then be reviewed if necessarily. The respondent in this appeal submitted that such a process would be cumbersome, and in some cases would be unfair to a claimant who would be involved in yet another round of the process of review and appeal. The appellant submits generally that it is simply a matter of interpretation and the practical outcome is not important because whether or not it is inconvenient in particular cases it is perfectly consonant with the scheme of the Act. In this particular case the appellant wishes to engage in the review process because in that forum it may have the advantage of the operation of Corporation policy directives, the nature of which are not discussed here. I hold that the Corporation's decision of 9 August 1994 is amenable to review. The appeal is allowed and the questions are remitted to the Review Officer for decision. The Review Officer will be called upon to decide whether there is a determination under s 90(9) benefiting the appellant, and if so, whether the Corporation is wrong in its refusal to give effect to the determination. The appellant will have costs of $650 on this appeal. DATED at WELLINGTON this 24 day of Hall 1996 D A Ongley District Court Judge