Palmer v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT INVERCARGILL Decision No. 1//96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN MARGARET PALMER of 91 95 /0408 Invercargill Appellant (Appeal No. DCA 174/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 15th day of February 1996 APPEARANCES Appellant in person A D Barnett for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to have her entitlement to an independence allowance backdated. The appellant fractured her pelvis, tibia and humerus in a motor vehicle accident on 8 July 1994. The respondent accepted her claim for cover under the Act. The appellant does not recall receiving notification from the respondent of possible entitlements which could have been available to her under the Act. However on 28 July 1994 she had lodged a claim for various items of clothing and damage to her motor cycle and for loss of wages. In addition, she later received home help assistance. On 16 March 1995 the appellant applied for an independence 2 allowance the assessment for which was completed on 22 March 1994 with the result that her net assessment of 15% entitled her to a weekly payment of $11.29. On 27 April 1995 the respondent advised the appellant of the result of her assessment and that it would be commenced from 22 March 1995 On 4 May 1995 the appellant applied for a review of that decision and in that application said that she did not recall getting a letter regarding her ability to claim for an independence allowance and requested that it be backdated to 6 October 1994 on the basis of a 100% disability. At the review hearing the appellant told the review officer that because of her illness she did not recall receiving any notification of possible entitlements and had left her daughter to manage her correspondence. The review officer held that she was satisfied that the appellant had been notified by the respondent of the entitlements for which she could have made a claim including an entitlement to an independence allowance. She also noted that the appellant had said that the matter had been "probably overlooked because of her state of health and this I can accept". The appellant submitted to me that her main concern was that she was not aware that she was entitled to make a claim for an independence allowance and that this was the reason why it had not been made until March 1995. Mr Barnett submitted that under the provisions of section 54(2) no independence allowance is payable earlier than 13 weeks from the date of the personal injury. He submitted that under section 54(4) when an assessment establishes entitlements for an independence allowance: "such allowance shall be payable from the date of the assessment or the dates appearing under subsection 2 of the section, whichever is the later." He then referred me to section 54(6) which provides: "Notwithstanding anything in sub section 5 of this section, if the assessment has not been made within 13 weeks after the date in which the personal injury causing the disability was suffered but the Corporation is satisfied that - (a) the assessment has not been completed (whether or not it has been commenced) for reasons beyond the control or responsibility of the injured person; and (b) if the assessment had been completed the degree of disability of the injury would have entitled a person to an Independence Allowance - the Corporation shall pay an Independence Allowance as if the injured person's degree of disability had been assessed at a percentage estimated by the Corporation." Mr Barnett submitted that the reason the entitlement had not been backdated to March 1995 was that no assessment had been completed nor had the appellant 3 made an application for entitlement prior to that date. He submitted further that the obligation to apply was on the appellant and that there is no provision in the Act which requires the respondent to initiate an application for an entitlement or to initiate an assessment without an application from the appellant. He submitted that by virtue of section 63(4) there is an obligation on the respondent not to make any payment of compensation unless a written application has been made. Mr Barnett referred me to the decision of the Court in Hart (100/95) which involved a claim for the backdating of an independence allowance and in which the Judge said: "The onus is on the appellant to persuade the Authority on the balance of probabilities that he had made an application for an Independence Allowance as at 1 July 1992. There is clearly no such evidence available to me and in the circumstances, the Respondent was correct to make the payments from the date of assessment as provided in the Legislation." I agree with Mr Barnett that there is no power to backdate the grant and that the respondent properly exercised its obligations within the terms of the Act. The appeal is dismissed. DATED at WELLINGTON this ~ day of MARCH 1996 Queunadear A W Middleton District Court Judge dc174-95.doc (nr)