Lak v Accident Rehabilitation and Compensation Insurance,Corporation

DECISION NO. 384/99 IN THE DISTRICT COURT HELD AT AUCKLAND DCA No. 179/99 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 K LAK Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act. Respondent Date of Hearing: 28 July 1999 Date of Judgment: 24 DECEMBER 1999 Counsel: CT Patterson for Appellant E Hook for Respondent JUDGMENT OF JUDGE JH LOVELL-SMITH MAUCK_DC_10IVOLI\GROUPSJUDICIAL\LOVELLADECISIONLak v ACC.doc 2 The issue in this appeal is whether the respondent's decision dated 15th September 1998 declining to assess the appellant for entitlement to the independence allowance was a proper exercise of its discretion. The appellant seeks an order directing the respondent to reassess the appellant pursuant to $54(A)(3) of the Act. The appellant contends that the Review Officer did not have jurisdiction to embark on a hearing because the hearing was not commenced within three months after the lodging of the application for review. Therefore the appellant's application for review should have deemed to have been determined in favour of the appellant under s 90(9) of the Act. The appellant's independence allowance should be reassessed and reinstated because he suffers from psychological and/or physiological impairment greater or equal to the ten percent threshold. Background The appellant emigrated to New Zealand in 1992 from Iran. In December 1995 he fell down a hole in the pavement due to road works causing an injury to his neck and back. The appellant applied for an independence allowance and his disability was measured under the functional limitations profile as 100%. The appellant received an independence allowance of $42.96 per week. On 1 July 1997 after a change to the Act the appellant's eligibility for an independence allowance was based on permanent impairment by a medical WAUCK_DC_10WVOLI\GROUPSJUDICIAL\LOVELLADECISION\Lak v ACC.doc practitioner. The appellant was required to reapply for his independence allowance and be reassessed. He was referred to DY R Powell for an assessment of the degree of his impairment caused by his personal injury. Dr Powell reported on 15 September 1997 with the opinion that the appellant had not participated in the examination "in a fair and honest way". In his opinion the appellant was not suffering from an accident-related condition. On 16 October 1997 the Corporation advised the appellant that his application for an independence allowance had been declined. On 24 August 1998 the appellant through his solicitors requested a reassessment of the appellant's impairment pursuant to s 54A(ili). This letter provided the appellant with a right of review. On 18 September 1998 the appellant obtained a report from Dr Bob Hamilton a psychiatrist who was of the opinion that he suffered chronic pain syndrome, helicobacter gastritis and depression as a result of the accident. On 27 October 1998 the appellant's solicitors applied to the Corporation for a review and requested the matter be set down for a hearing. On 30 October 1998 the Corporation advised that because the appellant's condition had not deteriorated the Corporation had no legal rights to have the applicant reassessed. On 30 November 1998 the Corporation wrote to the appellant's solicitors as follows: HAUCK_DC_101VOL I\GROUPSJUDICIAL\LOVELLA\DECISION\Lak v ACC.doc "Please also note that the hearing is to review our decision not to have Mr Lak reassessed because his medical certificate indicates that no impairment has resulted from the injury. On this basis your application for reassessment under s 54A(iii) of the Act has been declined as stated in my previous letter dated 30 October 1998. ".. With respect to your application to reinstate Mr Lak's independence allowance (your letter of 24 August 1998), Mr Lak has been assessed as having a whole person impairment rating of 0%..." "On this basis ACC will not reinstate Mr Lak's allowance because he is not eligible for it..." On 8 January 1999 the appellant lodged a review application against the Corporation's decision on 13 December 1998 on the grounds that his whole person impairment was 10% or more. The appellant's solicitors forwarded a copy of Dr Hamilton's report to the Corporation on 26 January 1999. The Corporation advised the appellant on 12 February 1999 that the branch medical adviser Dr Helen Porritt noted that the applicant's condition of psychological injury and other symptoms should be excluded from cover under s 10 of the Act. On 25 February 1999 the appellant's entitlement to a reassessment and/or independence allowance was reviewed. On 17 March 1999 the Review Officer confirmed the applications were unsuccessful. Section 90 of the 9/92 Act states in part; "90. Reviews...(9) If the hearing of a review has not been commenced within three months after the lodging of the application for review, and the delay is not caused or contributed to by the applicant, the application shall be deemed to have been determined in favour of the applicant." WAUCK_DC_10IVOLI\GROUPSJUDICIAL\LOVELLADECISION\Lak v ACC.doc The appellant's solicitors submitted that the Review Officer had no jurisdiction to embark on a hearing because the hearing was not commenced within three months after the lodging of the application for review. Counsel for the respondent submitted that in this case the appellant applied for a review by its solicitor's letter to the respondent on 27 October 1998 (there is no "prescribed form" for an applicant for review. In Simpson v ARCIC 27/7/95 DC Auckland 84/95 a simple letter was held by Judge Ongley to be sufficient for an application for review.) The review hearing was not held until 25 February 1999, some four months after the appellant applied for the review. It was the respondent's submission that two months of that four months delay was caused by the appellant and some further delay was contributed to by the appellant. The respondent replied to the appellant's application for review within three days advising that on the basis of Dr Mark's certificate the Corporation had; "no legal right to have Mr Lak reassessed... on the facts our initial decision not to reassess Mr Lak stands purely on the basis of lack of legislative authority." The appellant's solicitor then advised the respondent that the appellant still wished to review the decision. On 13 November 1998 the respondent sent an application for review form to the appellant's solicitor asking them to complete and return it so that the respondent could "make arrangements for a hearing". The completed application form was not received back by the respondent MAUCK_DC_10WVOLI\GROUPSUUDICIALLLOVELLDECISION\Lak v ACC.doc 6 until 13 January 1999, two months after the respondent had requested its completion. The appellant referred to new medical evidence that being Dr Hamilton's report, that it would be relying on at the review hearing but failed to enclose a copy of that evidence. The respondent then had to request a copy of that report which caused further delay. The review would have most certainly been heard within the three months of the application being made but for the appellant's delay in returning the completed application form to the respondent and its failure to supply the respondent with a copy of Dr Hamilton's report. I find that the delay was attributable to the actions of the appellant and that this ground of appeal therefore fails. The appellant's entitlement to Independent Allowance - Reinstatement Counsel for the respondent submitted that the appellant could not rely on Dr Hamilton's opinion in these proceedings to contend that Dr Powell's assessment and the respondent's decision of 16 October 1997 to cease his independence allowance was wrong. That issue was the subject of a separate review proceedings and was withdrawn at the appeal stage. accept the respondent's submission that with respect to the present proceedings the sole issue is whether the Corporation's decision of 15 September 1998 not to reassess the appellant is correct. WAUCK_DC_10\VOL I\GROUPSJUDICIAL\LOVELLADECISION\Lak v ACC.doc 7 Reassessment Section 54(2) of the 1992 Act provides that a claims entitlement to an independence allowance cannot be reassessed until the respondent has received a medical certificate from a registered medical practitioner stating that claimant's personal injury has stabilised [or more than 52 weeks has passed since the accident] and it is likely that there is an impairment resulting from the injuries. Section 54A(ili) states that where the respondent receives a medical certificate from a registered medical practitioner verifying that there is an increase in impairment, the respondent shall reassess the claimant. The medical certificate completed by Dr Marks on 3 September 1998 which accompanied the appellant's application for a reassessment of entitlement of the independence allowance stated that the appellant's injury had stabilised but it was not likely that the injury had resulted in an impairment. I find that Dr Hamilton's report is not a medical certificate and does not satisfy the criteria of s 54(2) and/or 54A(ili). Furthermore in regard to satisfying the criteria for s 54(2) of the Act his report does not mention whether the injury has stabilised or not and does not clearly state that there is any impairment. With regard to s 54A(ili) of the Act the report does not refer to any increase in impairment since the date of assessment. I accept the respondent's submission that Dr Hamilton's report cannot be used by the respondent as a basis for assessing the appellant's entitlement. MAUCK_DC_10\VOL I\GROUPSJUDICIAL\LOVELLADECISION\Lak v ACC.doc Finally, Dr Hamilton's report was not submitted until after the primary decision of 15 September 1998 and did not form part of the respondent's decision. This appeal can only consider the correctness of the respondent's decision of 15 September 1998. For the foregoing reasons this appeal is dismissed. (JH Lovell-Smith) District Court Judge WAUCK_DC_101VOL I\GROUPSUUDICIAL\LOVELLADECISION\Lak v ACC.doc