McAlpine Industries Ltd v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 84/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN McALPINE INDUSTRIES LTD of Auckland Appellant (Appeal No. DCA 288/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 8th day of April 1997 APPEARANCES A Sharp for the appellant T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to the benefit of a successful review pursuant to the provisions of s.90(9) of the Accident Rehabilitation and Compensation Insurance Act 1992. The facts which give rise to the appeal are that Paul Stanley Weber (the worker), who was then employed by Hoverd Industries Limited, lodged a claim for cover and treatment expenses with the respondent on 8 December 1992. The worker claimed to have suffered respiratory problems from inhaling welding fumes at work. After investigating the claim the respondent accepted that the worker had suffered a 2 personal injury caused by gradual process, disease or infection arising out of and in the course of his employment. It appears that no decision in respect of the acceptance of the worker's injury was sent to the company when the claim was accepted. At a later date it appears that Hoverd Industries Limited was taken over by McAlpine Industries Limited. In 1995 the respondent sent to the appellant its experience rating statement and the appellant queried the claim in respect of the worker. After further investigation the respondent issued a decision letter on 31 August 1995 confirming that the worker had suffered a work related accident. On 7 September 1995 the appellant indicated that it disputed the decision and requested copies of the documentation to enable it to implement a review of the decision. On 6 October 1995 the respondent advised the appellant that its medical adviser confirmed that the occupational history supported the relationship between exposure and asthma. On 30 October 1995 the appellant again requested disclosure of all information and documents which supported the decision. The respondent then advised the appellant that it could not release the worker's documentation without his consent unless an application for review had been lodged. On 7 November 1995 the appellant lodged an application for review of the decision of 31 August 1995. The respondent then sent some documents to the appellant who again responded that they did not constitute full disclosure. On 14 December 1995 some additional documentation was submitted to the appellant. On 15 January 1996 the respondent gave notice to the appellant that the review hearing was set for 7 February 1996. On 22 January 1996 an officer of the appellant spoke with the review officer because she was not satisfied that full disclosure had been made. The review officer confirmed that the appellant was entitled to receive all relevant information as it had made the application for review. The appellant then expressed concern that as the review hearing was to take place on 7 February there was insufficient time to consider additional material. Apparently the review officer then advised her that as the respondent was obliged to provide all relevant information before the review hearing, the appellant should apply for an adjournment of the hearing. On 22 January 1996 the appellant requested an adjournment of the review hearing pending full disclosure of all information it required. On 23 January 1996 the respondent wrote to the appellant stating: "The review set for Wednesday 7 February 1996 has been adjourned at your request." The respondent then provided additional material to the appellant and on 27 March 1996 notified it that the review hearing was then set for 17 April 1996. On 10 April 1996 the appellant notified the respondent that as the review had not been commenced within three months of lodgement, the appellant was entitled to a favourable determination pursuant to s.90(9). On 11 April 1996 the review officer submitted additional documentation to the appellant. The review hearing in relation to the application for a decision under s.90(9) was heard on 13 August 1996 and in his decision the review officer declined 3 the appellant's application. The review officer adopted the approach taken by the Court in Cockery (128/95) in reaching his decision. In support of the appeal Mr Sharp has provided me with substantial submissions in relation to the appellant's entitlement to a full disclosure of all documentation before a review hearing can be properly conducted. He submitted that the respondent was at fault in the manner in which it "drip fed" documentation to the appellant which hampered it in its preparation for the review hearing, particularly as some documentation, which in its opinion was essential to the case, was only provided at the last minute. He submitted that as a matter of natural justice the appellant was entitled to full documentation. Mr Sharp submitted further that under the Privacy Act 1993 the respondent was not prevented from disclosing the worker's personal information to his employer. In relation to the provisions of s.90(9) Mr Sharp submitted that the section provided that it was the review hearing which had to be commenced within the three month period rather than that the review proceedings had not commenced within that timeframe. He submitted that the use of the word "hearing" in this section should be interpreted in the sense of actual physical hearing of some form and that hearing involved a bringing together of the parties. Mr Sharp referred to numerous cases in respect of what constitutes "hearings" and "commencement" in the case of other jurisdictions. In addition, Mr Sharp submitted that the review officer had failed to address the issue of whether the appellant had contributed to the delay in commencing the review hearing. He submitted that the appellant's application for an adjournment had only been made on the recommendation of the review officer so that any question of delay was caused by the respondent in its failure to provide full documentation prior to the date on which the review had been set down for hearing. Mr Cleary submitted that pending the lodging of an application for review the personal information in regard to the worker's health was not information that it could disclose under the provisions of the Privacy Act without the consent of the worker. However, it recognised that when an application for review has been lodged by a party entitled to do so then all relevant information on the file can be made available to the applicant for review. He conceded that there is an obligation on the respondent at that time to disclose all relevant documentation. Mr Cleary submitted that in respect of the interpretation of s.90(9) I should have regard to and follow the decision in Cockery. He submitted that in this regard it is clear that the purpose of s.90(9) is to provide an incentive to the respondent to deal with applications for review promptly. He submitted that the concept is to provide an assurance for applicants that an application for review will be dealt with promptly and is there for the benefit of the applicant. 4 I accept Mr Sharp's submission that once the application for review had been lodged by the appellant it was entitled to full disclosure of all relevant material pertaining to the original decision as to whether or not the worker had suffered a work injury. I agree with Mr Cleary's submission that in this case the fact that the information was only provided belatedly for whatever reason does not constitute a breach of natural justice because at the time the review hearing actually took place full disclosure of all relevant material had been made to the appellant. The respondent gave proper notice to the appellant on 15 January 1996 that the review hearing was to take place on 7 February 1996. That notice properly complied with the provision of the Act and the Regulations. As the appellant thereafter considered it had not received all the relevant information it requested an adjournment albeit on the advice of the review officer. I consider that it is open to any review applicant at any time to request an adjournment which may or may not be granted by the appointed review officer. In this case the review officer was cognisant of the fact that some documentation had not been disclosed and that it was material to the appellant's case. It was for that reason that the adjournment was granted. Subsequently the appellant then sought the benefit of s.90(9) and the review hearing of that issue took place. While Mr Sharp made submissions in relation to what constitutes the commencement of the review hearing, I consider that I should follow the Court's decision in Cockery in which it was said: "This section does not require that the review hearing be concluded within 3 months, only that it be 'commenced'. I consider that the discussion which obviously took place between the review clerk and Mr Drummond, at which a date outside the 3 months period was accepted as a suitable date for the review hearing to take place, was commencement of the review process as a result of which the date was fixed. I agree with Ms Zumbach's submission that the provision should be given a fair, large and liberal interpretation because the legislature would have used the word 'completed' rather than 'commenced' if it contemplated that strict requirements were to be placed on every application for review. Even so, the requirement to 'commence' the working within 3 months does impose strict obligations on the respondent and it endeavoured to meet that requirement by discussing a suitable date with counsel which was expected. I do not think that it is now open to counsel to submit that the review hearing had not been commenced within the 3 months period and his submission is therefore rejected." I consider that in this case the date was set for the review hearing within the prescribed time after which the appellant considered it did not then have sufficient material disclosed to it to enable it to adequately present its case. I do not consider that that warranted the claim for a favourable decision under s.90(9). I consider that the review hearing had been commenced by the setting of a date and if, as this appellant found itself, it was not in a position to then proceed with the hearing it was entitled to request an adjournment and specify the grounds for the request to the 5 review officer as happened here. The adjournment was granted on that basis but I do not consider that having requested an adjournment the appellant can then seek to rely on s.90(9) to provide it with a favourable decision. As to the question of whether or not the delay in the hearing was occasioned by the respondent I do not consider that that issue needs to be answered in this case. The hearing of the review was commenced within the three months period and the delay, if there was one, was made at the request of the appellant only because it was seeking more information. While there may have been inadequate disclosure by the respondent I do not consider that in the circumstances of this case that is a matter which would warrant the appellant receiving the benefit of s.90(9). If the Court accepted the appellant's argument then it would be open to any applicant for a review, who is granted an adjournment after the appropriate date has been fixed to claim the benefit of s.90(9) if the subsequent date fixed for the hearing is beyond the 3 month period. That cannot be the intention of the legislation. The appeal is dismissed. DATED at WELLINGTON this 2 day of Many 1997 A W Middleton District Court Judge dc288-94.doc(rd)