Ancell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 52/ 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 88/ 95 / 0380 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN LINDSAY RAMON ANCELL of Timaru Appellant (Appeal No. DCA 199/95) 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 the appellant and from Ms P J Zumbach for the respondent with the request that I issue a decision on the papers. The issue is whether the appellant is entitled to have his Independence Allowance backdated The notice of appeal raises the additional issues of the quantum of the assessment of the appellant's Independence Allowance and his fitness for work. The facts which give rise to the appeal are that the appellant suffered an injury to his back in 1985 with a subsequent exacerbation in 1989. On 12 September 1991 the appellant's permanent disability was assessed at 15 percent as a result of which he received the appropriate award under s.78 of the Accident Compensation Act 1982 and the maximum award under s.79. In addition the appellant had received lump sum awards in respect of two other injuries being burns suffered on 31 August 1978 for which the award was based on 12 percent total bodily impairment and a knee injury on 17 January 1981 which was assessed at 17 percent of total bodily impairment. N On 18 January 1995 the appellant lodged an application with the respondent for assessment for an Independence Allowance. The assessment was conducted on 3 February 1995 with the result that the appellant was assessed as having a 100 percent disability under s.54 of the 1992 Act. On 23 February 1995 the respondent notified the appellant's result of the assessment: ACC has received the results of the reassessment for an independence allowance for yourself, which was completed on 03 February 1995. This was made under Section 54 of the Accident Rehabilitation and Compensation Insurance Act 1992. As lump sums have been paid in the past, the previous percentage must be subtracted from the current percentage of disability to determine the correct weekly payment level. The calculation is as follows: Re-assessed disability 100% Lump sum compensation 27% Independence allowance payable 73% The disability for which the allowance is payable is 73 percent. This means that the entitlement to an independence allowance is $19.51 per week. The independence allowance will be paid from the date of the assessment or thirteen weeks after the injury, whichever is later. Payments will be made quarterly in advance. The first payment of $253.63 covers the period from 03 February 1995 to 14 May 1995. You will be required to have further reassessments of your disability in the future. Reassessments will be no more than once every 12 months, but you must have one at least once every five years. You will be advised of your next appointment for a reassessment. Please note that your independence allowance may be suspended if reassessments are not completed when requested. If your disability gets worse, you may apply to be re-assessed (sic) for the independence allowance and any adjustments may be made to your payment. If you are not satisfied with this decision, or if there is something you do not understand, you should contact us immediately and discuss your concerns. Our staff will explain the decision and will explain your rights to ask that the decision be reviewed." The appellant applied for a review of that assessment together with the request that it be backdated to 1 July 1992. On 7 April 1995 the respondent notified the appellant that the allowance could not be backdated. 3 At the review hearing the appellant submitted that he was concerned that the respondent had not notified him at an early stage of the possibility of his entitlement to an Independence Allowance. He submitted that he had only become aware of it because of a report from a friend who had seen a television programme which prompted him to advise the appellant of his rights. The review officer noted that at the time the appellant had received his lump sum awards he had been advised that he should notify the respondent if his condition deteriorated. He found that until the application was made for the Independence Allowance no further request had been made by the appellant to the respondent and she declined the application for review. Ms Zumbach submitted that while the appellant has raised the question of the quantum of entitlement and the issue of fitness to work, I agree that I have no jurisdiction to deal with either of these matters as neither was the subject of the review hearing. If the appellant wishes those matters to be considered then they will have to be the subject of separate reviews which can then carry with them the additional rights for review and appeal. If as it appears the appellant wishes to proceed with the question of the quantum of the Independence Allowance I agree with Ms Zumbach's submission that this issue should be referred back to the respondent for consideration and I order accordingly. If the respondent wishes to continue with the issue of his fitness for work then it will be necessary for him to lodge an appeal against the decision of the review officer issued on 7 October 1993. Ms Zumbach referred me to my decision in Webster v ARCIC 22/94 in which I held that there is no obligation on the respondent to notify an appellant who has suffered personal injury by accident as to his or her rights because of the change in the law brought about by the 1992 Act. Ms Zumbach submitted that in relation to the claim that the Independence Allowance should be backdated, the terms of s.54 of the Act are clear and unequivocal and require that the Independence Allowance shall commence not earlier than 13 weeks after the date on which the personal injury causing the disability was suffered or the date of the assessment whichever is the latest. The Court has had to deal with this issue in a number of appeals and I agree with Ms Zumbach's submission that there is no discretion which enables the Court to go beyond the requirements of the Act. In this appellant's case I consider that the respondent has correctly applied the law and the appeal is dismissed. DATED at WELLINGTON this 2 day of August 1996 guineadular A W Middleton District Court Judge dc19995.doc(rd)