Swann v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 47/ 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN KOPERE HAMIORA SWANN of Ruatoria Appellant (Appeal No. DCA 190/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr N Collis on behalf of the appellant and from Mr A R Davie for the respondent with the request that I issue a decision on the papers. The issue before the Court is whether the respondent was correct to decline an application for review which was not lodged within three months of the respondent's primary decision. The facts which give rise to the appeal are that the appellant, who is a minor, lodged a claim for cover on the basis that he had suffered a medical misadventure on 13 February 1991 when his urethra was accidentally cut 2 during surgery. The appellant's surgeon notified the respondent on 26 July 1993 that in his opinion no medical misadventure had occurred. The information was submitted to the respondent's Medical Misadventure Advisory Committee which, after two meetings, concluded that there was no evidence to support a claim for medical misadventure. In a letter dated 4 November 1994 addressed to the appellant, care of his solicitors, Messrs Potts and Hodgson, the respondent notified the appellant that the claim for cover was declined. The letter included a copy of the Medical Misadventure Advisory Committee's advice to the respondent together with copies of the meeting case notes. The letter advised the appellant that if he was not satisfied with the decision he had the right to apply for a review. The letter concluded "all applications for review must be received within three months of the date of receiving this decision letter" On 10 February 1995 the appellant's solicitors applied for a review of the respondent's decision. On 14 February 1995, the respondent advised the appellant's solicitors that as the application for review was outside the three month period the respondent was unable to process the review application. The appellant applied for a review of that decision which was unsuccessful. It is against that decision which the appellant now appeals. In his submissions Mr Collis has stated that the appellant's solicitors consider that they received the letter of 10 November 1994 "on or about 14th or 15th November 1994". Also noted in the submissions is that in mid-January 1995 there was no communication between the respondent and the solicitors regarding the form of the review and raising the question of whether the claim came to be considered under the provisions of the Accident Compensation Act 1982. By letter dated 16 January 1995 the solicitors advised the appellant's parents the position regarding a review application and on 10 February 1995 the application for review was submitted to the respondent and received on 13 February 1995. Mr Collis raises the question whether the provisions of s.89 are mandatory and what constitutes the date of receipt of the notice in writing by a claimant such as this infant appellant. He submits that as the application for review was filed within three months of the appellant's parents receiving notification of that advice it can be taken that the application for review was lodged within the three month period. He submitted that the words in s.89(5)(b) that "notice in writing has been given of the decision" means advice to the appellant's parents personally. He submitted further that the merits of the particular application for cover for medical misadventure warrant a granting of the review hearing, particularly as there is no question of prejudice to the respondent. Mr Collis has then proceeded to make submissions on the basis of the McDougall provisions as they apply to late applications for review under the Accident Compensation Act 1982. Mr Davie submitted that the issue before the Court has already been the subject of a decision in Zehnder (73/95) in which the Court held that there is no discretion to go outside the three month limitation provided in s.89(5). This is in contrast to the provisions of s.101 of the Accident Compensation Act 3 1982. The limitation under that Act was only one month while under the 1992 Act the period for lodging reviews is three months and there is no discretion similar to that which applies to applications for appeal under s.91(3). While Mr Collis has suggested that time should accrue from the date on which the appellant's parents received notification of the decision on his behalf I do not accept this submission. The appellant's parents had clearly supplied a written authority to the respondent authorising Potts and Hodgson to act as their solicitors and they were the solicitors on the record. Accordingly, the correct procedure was that notification of the decision of the respondent was properly given to the solicitors by the respondent's letter of 4 November 1994. I agree with the finding of the review officer that the decision of this Court in Zehnder is applicable and the facts of this case are no different from those which apply in Zehnder. The Court indicated in Zehnder that there is no provision whereby the respondent is able to accept an application for review outside the three month's limit. I do not consider that the submission by Mr Collis that the provisions of s.89(5)(b) can be interpreted to mean that the notice must have been received personally by this appellant's parents. The solicitors were the properly authorised agents of the appellant and notice of the decision was properly given to them and time flowed from then. Accordingly, the decision of the review officer was correct and the appeal is dismissed. DATED at WELLINGTON this 14th day of A por. ( 1997 A W Middleton District Court Judge dc19095.doc(rd)