J v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN 3 / 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 40/ 95 / 0331 0332 0333. BETWEEN LANICE ROSE BURROW of Dunedin Appellant (Appeal No. DCA 148/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 12th day of February 1996 APPEARANCES Mr M Guest for appellant Mr TP Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the appellant's entitlement to lump sum awards in respect of three claims of alleged sexual abuse. The respondent declined the appellant's application to entitlement under s.147 of the Accident Rehabilitation and Compensation Insurance Act 1992 on the grounds that the appellant had failed to make a written election not later than 31 March 1993. The facts which gave rise to the claim are that in July 1990, the appellant had lodged a claim with the respondent in respect of an incident alleged to have occurred between 1970 - 1976. On 31 August 1990, the appellant's counsellor reported that the appellant had been sexually abused by her brother between 1970 and 1975/6, but no particular incidents of abuse were identified and no other 2 person was involved in the abuse. As the counsellor confirmed that the effect or abuse has had a lasting adverse consequence on the appellant's life, the claim was accepted and in December 1990 the appellant was awarded the maximum of $10,000 under s.79 of the Accident Compensation Act 1982. In August 1994, the appellant requested the respondent to reopen her file as she had then been advised that she may be eligible for lump sum awards in respect of four separate incidents of abuse. The respondent obtained confirmation from the counsellor that she could identify four separate incidents as a result of therapy which she undertook on 17 July 1990. She stated that two of the incidents had also been discussed in other appointments in 1990 and 1994. On 13 January 1995 the respondent advised the appellant that it accepted that there had been four separate incidents of abuse which it acknowledged constituted four separate claims. However, the respondent advised the appellant that as no election had been made prior to 31 March 1993, she was not entitled to lump sum awards. A review of that decision was unsuccessful and the appellant has now appealed against that decision. The notice of appeal states that the appellant made a valid written election in her letter of 24 August 1994 and that although the election was received after 31 March 1993 as prescribed by s.147, the policy of the respondent permitted acceptance of the written election. Mr Guest submitted that the appellant had made her claim for sexual abuse in 1990 and that it was successful. He submitted that it was not until later that the appellant became aware that she might be entitled to claims for separate incidents of sexual abuse which led to the request to reopen the file. The appellant claimed that an employee of the respondent had advised the appellant that she had not been properly advised when she filed her original claim. By her letter of 24 August 1994, the appellant indicated that "I am writing to request that my file be reopened as I would allege to four separate claims under s.79 in the Act". Mr Guest submitted that this was a definite indication of her wish to receive lump sum awards in respect of four separate incidents and that this represented a valid written election form filed with the respondent. Mr Guest submitted that s.147 requires only that a written election be filed with no other specific requirement as to its form. Mr Guest conceded that while the wording of s.147 indicates that a written election indicating a preference to receive lump sum compensation rather than an independence allowance must be made not later than 31 March 1993, the respondent had administratively interpreted the section to allow late claims to be accepted in cases where the respondent had been at fault. He submitted that on this basis the appellant's application, while not strictly in time, could be accepted within the guidelines established by the respondent and published on its notice board. He submitted further that a strict interpretation of s.147 could lead to an inconsistent approach between the decisions of the Court and the administrative 3 processes within the respondent. He submitted that had the respondent provided the appellant with accurate advice as to the manner in which her file should have been processed, she would have been entitled to make four separate claims for lump sum compensation under the 1982 Act. Mr Cleary referred to the decision in Black v ARCIC (66/94) in which Judge Imrie held: "(1) There is no entitlement to a lump sum compensation under s. 78 or s.79 of the 1982 Act unless a claim in respect of personal injury by accident is lodged before 1 October 1992: s. 147(2A). (2) If a claim for personal injury by accident is lodged before 1 October 1992 the entitlement to lump sum compensation under s. 78 or s. 79 of the 1982 Act is preserved if the person makes a written application for such lump sum compensation on or before 1 April 1993: s. 147(1). (3) If a claim for personal injury by accident is lodged before 1 October 1992 and there is a written application for lump sum compensation before 1 April 1993 the claimant may elect in writing no later than 31 March 1993 to receive lump sum compensation under s.78 or s.79 of the 1982 Act or an independence allowance under the 1992 Act but not both: s. 147(2). (4) Even if a claim for personal injury by accident is lodged before 1 October 1992 and there is a written application for a lump sum before 1 April 1993 that person is deemed to have elected to receive an independence allowance in place of lump sum compensation unless he or she elects in writing not later than 31 March 1993 to receive his or her entitlement under s. 78 or s. 79 of the 1982 Act: s. 147(3)". In Webster v ARCIC (22/94), the appellant had suffered personal injury in April 1985 for which he had received various amounts of compensation and the file was closed in June 1985. The appellant applied for lump sum awards in July 1993 in respect of injuries received in 1985 and the application was declined. While the appellant's argument was that he was unaware of the requirement to lodge an election notice, the Court held that because the appellant had not made the necessary election by 31 March 1993, he was deemed to have elected to receive an independence allowance, whatever the reason for his failure to make the election. In Webster v ARCIC (97/95), the Court stated: "There is absolutely no discretion which would enable the respondent or this Court to extend that period. While the appellant submits that having had he claim for cover accepted, the respondent was under a duty to notify her of the requirements of the 1992 Act and, in particular, the requirement to make a written election. I do not accept that submission. The introduction of the 1992 Act was followed by substantial publicity particularly directed at the fact that lump sum awards would no longer be available and all possible claimants were, or should have been, thereby alerted to the fact that it was necessary to enquire as to their respective position. I do not consider that there was any breach by the respondent in failing to personally notify the appellant." In the decision of G V ARCIC [1994] NZAR 353 Judge Kerr had to consider a case where the appellant had lodged claims for cover and treatment for three episodes 4 of sexual abuse occurring in 1975, 1976 and 1982. In the first claim which was prepared by the appellant's doctor and lodged before 1 October 1992, it was stated that the date of injury was 1975 and the diagnosis was sexual abuse. The doctor subsequently indicated that this should have referred to multiple abuse. The claims for the 1976 and 1987 abuse were lodged after 1 October 1992 and were declined as being statued barred. Judge Kerr said: "Having regard to s. 147, and more particularly subs (2A) thereof, as the sexual abuse which occurred in 1976 and 1982 was not claimed for prior to 1 October 1992, the Accident Compensation Act 1972 and the Accident Compensation Act 1982 cannot apply, and as a matter of law, the Corporation is not entitled to award a lump sum payment for the 1976 and 1982 incidents. I consider that G is harshly treated. She is harshly treated because of a mistake on the part of her doctor. She is harshly treated because of the nature of the legislation now applying to accident compensation victims, and she is harshly treated because of the abuse she suffered whilst of tender years and in her teenage years. Unfortunately, I can see no way round the situation in which G finds herself. However, as indicated before she has been accepted for an independence allowance and, of course, her counselling has been paid for too, by the Corporation." The relevant law is contained in s.147 of the Accident Rehabilitation and Compensation Insurance Act 1992 which states: "147. Compensation for non-economic loss - (1) Where any person had an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 but has not received that compensation and makes written application for that compensation before the 1st day of April 1993, that person shall be entitled to payment under those sections if payment is made on or before the 30th day of June 1995 or after that date if pursuant to a decision given on review or appeal under Part IX of the Accident Compensation Act 1982 as continued in force by section 152 of this Act. 2) Where any person has suffered personal injury by accident to which the Accident Compensation Act 1972 or the Accident Compensation Act 1982 applies, and - (a) That person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 in respect of that personal injury, but has not received any payment under any of those sections in respect of that personal injury; and b) That person would have an entitlement to an independence allowance under this Act if the personal injury had been suffered on the 1st day of July 1992 - that person shall be entitled to elect in writing, not later than the 31st day of March 1993, to receive either his or her entitlement under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982, or an independence allowance under and subject to the conditions of this Act, but not both. (2A) For the avoidance of doubt, it is hereby declared that, for the purposes of subsections (1) and (2) of this section, no person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 unless a claim in respect of the personal injury by accident had been lodged with the Corporation before the 1st day of October 1992. 5 3) Subject to section 148 of this Act, if - a) No payment has been made in respect of personal injury by accident under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982; and (b) No payment is made under subsection (1) of this section; and (c) No election is made under subsection (2) of this section - the person shall be deemed to have elected to receive an independence allowance under and subject to the conditions of section 54 of this Act as if the personal injury by accident was personal injury that had been suffered on the 1st day of July 1992. The Court has consistently stated as it did in both Webster and Black that claims must be lodged before 1 October 1992 and the written election for lump sum compensation must be made by 1 April 1993. While the appellant in this case had received a lump sum award in respect of the claim as initially filed, there was still the obligation to make specific claims in respect of other alleged incidents before October 1992 and to make the written election to receive lump sum awards not later than 31 March 1993. I do not accept the submission that the respondent had the power to administratively revise its decision to accept a claim for a lump sum election after the due date. While the respondent had apparently made some rules regarding problems which arose through claimants being given incorrect advice, that situation does not apply to this appellant, nor is this Court able to consider the appeal on that basis. The Court can only apply the law as it stands. While the original reports from the counsellor gave rise to only one claim, it cannot now be inferred that the respondent should have recognised the reports as containing more than one claim. I agree with Mr Cleary's submission that had the respondent been made aware of the four incidents of abuse at the time the original claim was settled, then no doubt the appellant's position would have been that four claims would have been considered rather than one. As the date on which the claims have been lodged falls after 1 October 1992, they can only be considered in terms of the 1992 Act. I accept Mr Cleary's submission that there was no evidence of inaccurate advice having been given to the appellant initially, nor do I accept that the appellant's letter of 24 August 1994 represents a written application for a lump sum in terms of s.147 as it was not received by the respondent before 1 April 1993. Accordingly, the appeal is dismissed. DATED at WELLINGTON this 6 2 day of MARCHt 1996 Quecuradiit A W Middleton District Court Judge