MC v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 8/96 HELD AT AUCKLAND IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of Appeals pursuant to Section 91 of the Act 19 / 93 0014. BETWEEN MC Appellant (Appeal No. DCA 27/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent AND BETWEEN LF Appellant (Appeal No. DCA 79/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent DATES OF HEARING 4, 5 July 1995 NAMES OF APPELLANTS NOT TO BE PUBLISHED APPEARANCES Ms E Jones for appellant M C Mr A Barnett for respondent Appellant L F represented by her father Ms J Johnston for respondent - 2- DECISION OF JUDGE D A ONGLEY These appeals concerned sexual abuse claims in respect of assaults which occurred over a period from about 1976 to 1981 when the appellants were less than 10 years old. The appeals fall to be decided on a question whether notice of a claim for personal injury by accident was given to the Corporation shortly after the abuse occurred. The appeals were heard separately but they involve almost identical considerations and the circumstances of each appellant is well known to the other so it is more convenient to include both appeal decisions in one judgment than to repeat a good deal of the subject matter. There is no question about the genuineness of the claims. While the appellants were living with their parents in a commune, they and other young girls occasionally visited a doctor who lived nearby. Sexual assaults committed by the doctor against five girls came to light during 1981 while the families were still living in the commune. The parents of the girls conferred together and convened a meeting attended by the families, by their daughters who had been sexually assaulted, and by Dr Hunton and his wife. Dr Hunton was an endocrinologist practising in the area where the families lived. He provided the families with professional medical advice about the steps they should take to limit the effect of the abuse on the girls. The general import of his advice to the parents was that they should observe their daughters and should not take further action unless they found it necessary. The reasoning that was followed was that police action or counselling could serve to highlight the problems and make matters worse. That advice was no doubt sensible enough according to conventional wisdom then but it is not the kind of advice that would be expected today in comparable circumstances. Some of the complaints were revived in about 1991 and then notified to police. The doctor was then charged with 22 offences including indecent assault and sexual violation involving the two appellants. He pleaded guilty and was sentenced to imprisonment. Three of the five victims of sexual abuse lodged claims with the Corporation before 1 October 1992. These two victims of the same series of offences failed to lodge their claims in time. Both appellants were interviewed by police in July 1992, just after the commencement of the Accident Rehabilitation and Compensation Insurance Act 1992. At that time M C was affected by considerable personal stress. L F was a student and her parents and older sister were overseas Both were distressed by the process of recording the circumstances of the abuse and they did not receive advice of eligibility to claim accident compensation and the need to lodge a claim under the 1982 Act in time. In cases where no lump sum compensation claim was lodged before the commencement of the 1992 Act, an extension of the time to claim compensation for non-economic loss was given under s 147. The appellants would be entitled to assessment for lump sum compensation if they had an existing entitlement to compensation under either of the former Acts and had made application for lump sum compensation before 31 March 1993 with an election to receive compensation under the 1982 Act in preference to an independence allowance under the 1992 Act. The Corporation disputed that they had an existing entitlement because no claim - 3 - had been lodged under either of the former Accident Compensation Acts. Section 147 has now been the subject of numerous appeal decisions; it is set out below for completeness: 147. Compensation for non-economic loss - (1) Where any person had an entitlement to compensation under section 1 19 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 Ist 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 1 19 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 Ist day of July 1992 - that person shall be entitled to elect in writing, not later than the 3 Ist 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 1 19 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 Ist day of October 1992. (3) .. (4) ... The only occasion on which a claim could have been lodged by either of these appellants with the Corporation was after the meeting or meetings with Dr Hunton and the appeals therefore turn on a question of fact whether a claim was then lodged. There is no record of such a claim by either of the appellants. The process of lodging claims was different from the present process. It was governed by s 142 of the 1972 Act requiring notice to be in writing stating the nature and cause of the injury and the date, time, and place at which the accident happened. The requirements of the 1982 Act were similar. The particularity required by the section was not insisted upon by the Corporation in 1981 A system of bulk billing by - 4. registered medical practitioners was permitted. The medical practitioner determined whether the consultation related to personal injury by accident and billed the Corporation. The Corporation did not automatically open a register or a file in respect of the individual claimant. The bulk billing documents for that period have not been preserved by the Corporation in an accessible state. It is possible that Dr Hunton billed the Corporation for his attendance upon the girls and their parents but if so any record kept by the doctor has also been lost. Recognising the difficulty of dealing under the 1992 Act with questions of whether a claim had been made under the old system of administration, the Corporation issued two team briefs or practice bulletins declaring its policy in relation to those claims. A bulletin of 9 September 1993 stated: "6. Pre-1 December 1989 Medical Fees Claim Some providers are quoting schedule numbers from medical services claimed prior to the introduction of medical treatment costs regulations on I December 1989. There is effectively no way of retrieving these old schedules to confirm cover. Up until 1 December 1989, medical fees were handled at Head Office on a pay as claimed basis without verifying 'personal injury by accident' had occurred. The schedules were paid, then filed in cartons, and now reside at Archives where they are not in any condition to search for particular individual schedules. If a GP quotes these old schedules, and there is no record of a claim on IIS or MFS, a new M46 must be requested to enable a claim to be registered. It is still necessary to make a decision as to whether the injury was due to PIBA which would have been acceptable under the 1982 Act. When considering this issue you need to review all the acceptance criteria for claims under the 1982 Act, and not only whether the person has suffered PIBA." Another bulletin of 1 1 February 1994 stated: "6. Lodgment of claims A number of concerns have been raised regarding how the Corporation determines whether a claim has been 'lodged'. The issue arises when considering the application of Section 135(3) of the Act. Policy was announced in respect of this issue in Team Briefs 11, 13 and 15. However feedback from staff indicated that these policy statements are, at best, confusing, if not contradictory. We have therefore established a global definition of 'lodgment' that will apply to all claims. In doing so, guidelines have been set for determining whether any claim for cover decision is to be made under the 1982 or the 1992 Act. ... For 'Sensitive Claims' (i.e. those accepted under Section 8(3) of the Act) the date of injury is deemed to be the date ine claimant first seeks treatment/counselling that we would have paid for (whether or not payment was actually made) in respect of the injury. 5 - Once this date has been firmly established as being before I July 1992, the date of lodgment can then be considered. This will be the earliest of: an IIS or cardinal Medical Fees 'formal' claim (CI/C14 or M46) received before I October 1992; or any record on the interim medical fees system (I December 1989 until Cardinal); or proof of ACC related medical treatment being claimed before 1 December 1989 For 'Sensitive Claims' the date of lodgment follows the same lines, and includes any record of receipt of a counselling costs claim." This practice overcame the difficulty that claimants would otherwise have been faced with in having to show that the form of their claim complied with the requirements of the former Acts. In effect the Corporation waived formal compliance and accepted as valid claims made through medical practitioners or other approved treatment providers. If the appellants were able to establish that a claim had been made by Dr Hunton the Corporation would have waived formal compliance in accordance with the policy expressed in those team briefs. On the hearing of these appeals evidence was called to establish that the nature of the meeting with Dr Hunton was in effect a medical consultation. The mother of M C testified that she and her daughter were present at two meetings with Dr Hunton and the purpose of the meetings was to establish the level of abuse that had occurred and to obtain medical advice concerning the best way to deal with the consequences to the young girls. Dr Hunton attended with his wife. His opinion was sought as a medical practitioner who had experience in the field of sexual abuse therapy. His view that the consequences might be exacerbated by further action against the abuser was accepted. His advice that therapy need not be sought unless a need was demonstrated by the behaviour of any of the girls was also accepted. The father of L F gave similar evidence. The meeting occurred at the home of one of the families at Cape Colville to which Dr Hunton travelled from Thames. The appellants did not attend at the doctor's rooms. I find no reason to doubt the evidence given by the two parents. The Corporation had placed some reliance on the fact that Dr Hunton was not recorded as an approved therapist. That is not an important factor because any consultations of the kind that have been described would naturally have been directed at the assessment of consequences of sexual abuse and would thus have a medical purpose of consultation and advice rather than the provision of counselling or therapy. I accept that Dr Hunton was engaged because of his professional qualification as a doctor. Both parents who gave evidence said that they respected his opinion because of his medical qualification. He had evidently been involved at some time in some form of group therapy but the nature of his dealing with the parents of these abused children could well be said to have been in a medical context in order for them to understand the effect of the abuse and its consequences. The advice which he gave was not directly related to his medical field but initial consultation with a medical practitioner need not be so. M C's mother regarded the obtaining of advice in a group meeting from Dr Hunton in the same way as advice she might otherwise have - 6- sought from her general practitioner. It is quite possible that Dr Hunton would have regarded the matter in the same way and charged the Corporation as he would ordinarily have done following consultation with a patient in relation to personal injury by accident. For the purpose of this claim the appellants asked Dr Hunton to confirm that he had received payment from the Corporation for the advice given to the parents. He had by then left New Zealand and was employed by the University of Hawaii. Several items of correspondence and reports of Dr Hunton's recollection of the meeting have been provided to the Corporation. In a letter to the Corporation dated 3 May 1992 he stated: "In February 1993, I wrote to the ACC verifying I had in about mid 1981 travelled to Cape Colville, in a professional capacity to conduct a group therapy session for residents of the Opuhi reserve. The meeting had been called after it was discovered that one of the residents had sexually molested a number of children living on the reserve. More recently I have been contacted by Mr [K] father of [L] and Mrs [C], mother of [M]. They ask me to supply the ACC with a statement that I received payment from the ACC for that session. I have now been living overseas for almost eight years and the specifics of 1981 sessions are difficult to recall accurately, but I hope it is suffice to say that it was my practice at that time to claim for such group therapy sessions and thus I almost certainly filed a claim and subsequently received payment for that particular session." In that connection, the fact that no record could be found that Dr Hunton was an approved therapist unfortunately leaves a lack of support for his assertion that he was in the practice of claiming for group therapy sessions. L F wrote to the Corporation on 28 October 1993 after her father had contacted Dr Hunton: "My father telephoned Dr Hunton on 27th Oct. Dr Hunton was unsure whether or not he claimed for this session and had no records available to check, as he is overseas. He said that it is possible that his claims for ACC for group therapy and counselling work might be alternatively held under the name Tahau, a private trust or foundation for the benefit of disadvantaged adolescents, because as his principal medical speciality was in endocrinology, he donated his ACC claims for counselling work to non-profit organisations. He said that because he was asked to attend the group therapy session at short notice when the molestation was discovered ... he may not have had an opportunity of establishing the names of all the affected parties at the time, which would naturally affect his capacity to include all such parties by name in my ACC. claim." I do not think that particular significance need be placed on the doubts in Dr Hunton's mind reported by the appellant, but at the same time a realistic view must be taken about the weight of Dr Hunton's assertion that he "almost certainly" - 7- filed a claim. The circumstances of the meeting were unusual, not being typical of either a group therapy session or a medical consultation. Dr Hunton did not know whether he had claimed for fees and expressed his belief in reliance on his usual practice of charging for group therapy sessions. The evidence relating to this particular meeting tends to show that it was not a group therapy session although Dr Hunton described it as such in his letter. At the hearing the question was raised as to whether the names of the claimants would have had to be included in a compensation claim for fees, whether for a medical consultation or for group therapy. Counsel undertook to provide an agreed memorandum on the question whether bulk billing schedules would have been accepted by the Corporation without the name of the claimant and particulars of the accident. That memorandum was later supplied with a copy of the kind of schedule used at the time, showing that the names of claimants were required on the form. The tenor of the evidence is that the family groups did not turn their minds to accident compensation and it is unlikely that they furnished a list of names for the purpose of a medical fees claim. In order to succeed on this appeal the appellants need to show that the Review Officer was wrong, in each case, in finding that a claim was not lodged by Dr Hunton on their behalf. On the facts in these cases there is no other possibility of a claim having been lodged at least until "Advice of Injury" Cl forms were lodged 10 March 1993 in the case of L F and 16 March 1993 in the case of M C. The circumstances are unusual because the fact that no written claim can be located is a neutral factor, that is it does not tend either to prove or disprove the question in issue. Usually it would be an essential matter of record or at least something that a claimant would need to establish with cogent evidence. Here the absence of any record has no probative value because if there had been a claim it would not be possible to locate the record in any case. The fact that there was no registration of either of the appellants as a claimant is consistent with the circumstances advanced by the appellants. The appellants' parents accepted medical advice to seek no further professional assistance and thus there was no occasion for any further medical or compensation record to be made. The fact that there is no medical record is also explained by the effluxion of time and the doctor's leaving New Zealand to practice overseas. In considering the probabilities it is necessary to put aside the absence of records. In other words the absence of records does not of itself raise any question about the probability of a claim having been made. In the case of M C the Review Officer mentioned that it had been possible in other cases for practitioners or treatment providers to verify payment and to quote schedules. She gave particular emphasis to the considerations that Dr Hunton was not registered as a service provider and he could not accurately recall "specifics" of 1981. In the end she was not satisfied that a claim could be considered to have been lodged. The findings of the Review Officer did not turn on any question of credibility. It might be argued that undue emphasis was given to the lack of records and to the fact that Dr Hunton was not registered as a service provider. Whether the matter.is considered anew on appeal, or whether the appellants are required to show that the Review Officer was wrong, there is in either case a burden on the appellants to show on the balance of probabilities that a claim was made. There is an element of mystery about the basis on which Dr Hunton may have carried on therapy - 8- sessions and billed the Corporation, but if he provided medical consultation in order to assess the medical and psychological effects of sexual interference with children there seems to be no reason why he could not have claimed in the manner that was usual at the time for attendance on a general practitioner. The fact that he was not recorded as a provider of counselling services is not determinative in the circumstances described in this case where the nature of the doctor's engagement was one of assessment and advice. While the psychological consequences of sexual assault were not his speciality, they were apparently part of his field of professional interest and sufficiently connected with his general practice to have been a proper subject of charging to the Corporation to the extent of one or two preliminary consultations. Attendance with the parents as a group was nevertheless rather unorthodox for a medical consultation and, leaving aside Dr Hunton's comments in his letters, the circumstances do not bear a strong inference that medical consultation fees would have been charged. The meeting was held for professional advice about a matter of communal concern and was not essentially a medical consultation, nor was it in the nature of a group therapy session. In the case of L F the Review Officer set out the relevant considerations quite succinctly: "The standard of proof in matters of this kind is not as stringent as that required in a court of lay. [F] need not prove beyond reasonable doubt, or even on the balance of probabilities, that a claim was lodged with the Corporation in 1981 through Dr Hunton's therapy session; rather, I must be persuaded that this was the case. Having studied all the evidence, I am not so persuaded. The Corporation itself has no record of the session, either as a medical consultation or as a group therapy session. As in general the Corporation has not retained medical fees records prior to 1989, this does not prove that there was no such claim. Instead, what can be drawn from this is that the Corporation's records cannot establish that such a claim was lodged. Dr Hunton states in his letter of 3 May 1994 that it was his practice to claim for group therapy sessions. However, he cannot confirm that he did so in this case. The Corporation has confirmed that group therapy can be paid for, but only through an ACC approved counsellor, and has further confirmed that Dr Hunton has never been listed with them as an ACC counsellor. Clearly, then there is no possibility that if Dr Hunton claimed specifically for group therapy that the Corporation would have paid for this. The other alternative is that instead of claiming for group therapy per se, that Dr Hunton made a claim for a first medical consultation. This appears to be unlikely given that this would have restricted his reimbursement to the 1981 equivalent of the current available contribution of $26.00. However, even if it were the case that Dr Hunton made a claim in the form of a first medical consultation, there is, in my view, given the lack of availability of Dr Hunton's records and his inability to confirm the claim, insufficient evidence to establish that a claim was lodged in this manner." I am unable to conclude that the Review Officer was wrong in relation to either appeal. The circumstances of the meeting or consultation do not of themselves support a conclusion that a fees claim would have been made to the Corporation. The doctor's own recollection is not conclusive. Dr Hunton's own written statement, - 9- made over ten years later, was that it was his practice at that time to claim "for such group therapy sessions" and he almost certainly filed a claim and subsequently received payment for the particular session. Some doubt is injected by his preamble that the specifics are difficult to recall and by the other matters to which I have referred. Of course the question is not whether he was unsure but whether it is more probable than not that he did file a claim. In the light of his letter and against the general background that he was consulted because of his professional expertise the likelihood that he charged cannot be discounted, but even accepting the evidence given on behalf of the appellants, there are too few of the hallmarks of a medical consultation for personal injury by accident with an intention on the part of either the doctor or the patient of claiming against the Corporation. The shocking nature of the revelations of sexual abuse by a respected medical practitioner and the parents' concern about making appropriate decisions would undoubtedly have been the overwhelming issues that occupied the minds of Dr Hunton and the other persons present at the meeting. There is no suggestion that recourse to the Corporation was even mentioned at the meeting and against that background it would be wrong to conclude that a claim was probably made. I cannot accept the alternative argument that was advanced to the effect that mere consultation with a medical practitioner was enough to amount to the making of a claim under the 1972 Act. That proposition was argued on the basis that the medical practitioner was effectively the agent of the Corporation to receive claims and that once a medical consultation occurred the failure of the practitioner to record the claim could not disentitle the claimant. The material that is available does not go so far as to show that the Corporation appointed any or all medical practitioners as its agents for receiving claims. The Corporation has adopted a policy of accepting proof from other sources that a claim was lodged before December 1989 and the common method of proving the fact of lodgement is by resorting to medical records. In the absence of medical records, there are cases were the circumstances may afford sufficient evidence of probability that a claim was filed. The policy of the Corporation involves only a question of evidence. It does not recognise that medical practitioners acted as agent for the Corporation, nor could it on a retrospective footing declare that medical practitioners acted as agents for the Corporation prior to December 1989 if that was not the position at the time. There is no evidence that medical practitioners ever did act as the Corporation's agents to receive claims, only that evidence from practitioners' records will be accepted in the absence of any accessible Corporation records. If the Court had any power to decide the appeals on grounds of justice and fairness the outcome would be different. The Review Officers have strained unsuccessfully to find a solution favouring the appellants. The appellants have both been unfairly disadvantaged in the prosecution of their claims for compensation. Their parents acted in what was considered the appellants' best interests at the time the abuse was discovered. They consulted with a medical practitioner who was entitled to bill the Corporation for the consultation. The appellants' eligibility for lump sum compensation now turns on the almost incidental factor of whether the doctor did in fact bill the Corporation. The unfairness is compounded by the fact that three of the victims of abuse have been able to obtain lump sum compensation. Both appellants had little or no conscious recollection of the incidents until complaints by other - 10 - victims revived her own memories. Scepticism that is occasionally expressed about the reviving of repressed memories is unwarranted in this case, because the offender acknowledged that the offences occurred and he pleaded guilty to offences against the two appellants. The appellants both made their statements to the police without being aware that they were eligible for compensation and no one informed them of their compensation rights. This kind of arbitrary and unfair result is continually encountered under the transitional provisions of the 1992 Act because of the time limits which are laid down in the Act to close off discontinued forms of compensation without any recourse to discretionary relief where there is a good explanation for a delay in claiming. After a period of some years a prosecution of the offender is not barred by delay but a claim for compensation is. It is true of course that the appellants could apply for an independence allowance but that is unlikely to provide the level of compensation that would have been available under the lump sum provisions of the former Act. The appeals are dismissed. The appeals have not been brought without good reason and it is one of those unusual cases where the appellants should have costs even though the appeals are unsuccessful. Orders are made that the respondent pay M C, represented by counsel, the sum of $600 and L F the sum of $200. DATED at WELLINGTON this One day of MARCH 1996 D A Ongley District Court Judge