Trego-Makianu v Accident Compensation Corporation (Right of Review)

IN THE DISTRICT COURT AT AUCKLAND ITE KOTI-A-ROHE KI TAMAKI MAKAURAU [2019] NZACC 95 ACR 238/18 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPEAL UNDER SECTION 149 OF THE ACT BETWEEN METUA TREGO-MAKIANU Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 26 June 2019 Appearances: B Hinchcliff for the appellant F Becroft for the respondent Judgment: 13 August 2019 RESERVED JUDGMENT OF JUDGE JH WALKER [Right of Review s 135 Accident Compensation Act 2001] [1] The appellant in this matter is Metua Trego-Makianu (the appellant) and the respondent is the Accident Compensation Corporation (the Corporation). [2] This is an appeal pursuant to s 151 of the Accident Compensation Act 2001 (the Act). 3] There is a dispute about whether there is a reviewable decision made by the Corporation in respect to the matter on appeal before the Court. [4] A review hearing was heard before the Reviewer, Sandra Gray, on 4 April 2018. She issued her decision dated 12 April 2018 stating that she considered there was no jurisdiction to consider any decision on the Court file, and in particular she had no jurisdiction to consider the substantive issue relating to the reduction in the rate of weekly compensation. [5] Accordingly, she dismissed the application for review. [6] The appellant lodged a Notice of Appeal on or about 1 August 2018. The Notice of Appeal on the Court file is unsigned and undated. [7] A signed Authority to Act, dated 19 November 2017 was filed on the same date. Background [8] The appellant had cover for a lumbar sprain sustained at his workplace on 9 December 2015. [9] He attended his GP, Dr Henry, on 5 January 2016, and was initially certified unfit to work for seven days. Dr Henry filed the ACC claim on the appellant's behalf. [10] The appellant completed a workplace injury form on 5 January 2016, which noted he had been working for Tradestaff since 12 October 2015. [11] The claim was initially managed by Gallagher Bassett. On 7 January 2016, Gallagher Bassett accepted cover for the appellant's work-related injury. [12] After acceptance, Gallagher Bassett commenced investigation into the appellant's entitlement for weekly compensation. [13] An Employee Earnings Certificate was completed by the payroll supervisor for Tradestaff on 22 January 2016 and noted that the appellant was a casual employee and the expiry of his casual contract was dependent on the future work available. It was noted that the appellant was earning an average of $852.00 in the four weeks prior to his incapacity (from 7 December 2015 to 3 January 2016) and an average of $8,245.00 in the 52 weeks prior to 5 January 2016. [14] On 22 January 2016, Gallagher Bassett wrote to the appellant advising him that weekly compensation had been calculated based on the details of his earnings. [15] Gross weekly compensation of $545.28 was paid for the period starting from 12 January 2016. The letter noted that the appellant's medical certificate would expire on 8 February 2016 and to continue to receive weekly compensation he would require a further medical certificate of ongoing incapacity. [16] The letter also referred to the appellant's review rights if he was not satisfied with this decision and the details of how he could apply for a review. [17] The appellant's weekly compensation continued at a rate of $545.28 per week for the next four weeks. [18] Gallagher Bassett held a meeting with the appellant and Tradestaff on 22 February 2016 where weekly compensation was discussed in depth. The appellant was advised earnings would now be calculated based on his long-term earnings. When asked to comment on his earnings for the 12 months prior to 5 January 2016, the appellant reported he had been running his own scrap metal company and had set this up as a sole trader. The appellant stated he was asked if he had lodged the business with the IRD, paid any taxes or ACC levies and advised he had not. [19] The appellant was asked to fill in a form anyway and return it. He was advised that if he had no earlier earnings then what earnings he did have from Tradestaff would be divided by 52 weeks and Tradestaff/Gallagher Bassett would pay 80 percent of that figure. [20] On 23 February 2016 Gallagher Bassett emailed the appellant's employer, Tradestaff, asking "If not for the incapacity, would Metua be working full time hours in the long term?" [21] Tradestaff replied the next day explaining all employees were casual workers, their jobs were extended from week to week as required by the client and it was difficult to estimate the length of any one job [22] On 23 February 2016 Gallagher Bassett issued a weekly compensation advice letter with a payment schedule outlining the appellant's entitlement to weekly compensation at a long-term rate of $126.86 per week, based on the fact he was not in permanent employment. This weekly compensation advice letter included information on a claimant's right to a review of the decision. [23] On 23 February 2016 the appellant contacted Gallagher Bassett with concerns that his weekly compensation had dropped significantly and asked to be sent a review application form. [24] It was explained during that conversation that his long term weekly compensation rate was based on his earnings over the last 12 months. [25] On 26 February 2016 Gallagher Bassett sent the appellant a Section 3 - Entitlements form inviting him to fill in details of his past employment earnings for the 12 months prior to his incapacity. The appellant completed the form and advised he was self employed and provided a form from Sims Pacific Scrap Metals as well as his business card. [26] An internal file note of 29 February 2016 noted there was some confusion about his completion of the entitlements form and there was some difficulty contacting him to discuss this. It was noted that in the form there were no wage slips, only a printout of what he had received. There were no tax returns attached from the IRD, and nothing from an accountant or the IRD to show he was registered as self-employed. [27] On 29 February 2016 Tradestaff contacted Gallagher Bassett to advise that the appellant had not attended his weekly rehabilitation meeting. Gallagher Bassett wrote to the appellant advising him he was at risk of losing his weekly compensation entitlements due to his non-attendance. [28] On 1 March 2016, Gallagher Bassett telephoned the appellant who explained that the documents (sent with the section 3 form) were the wages earned from his self-employed business but as his business was not operating at that time, he had not paid any taxes or levies in the past year. Gallagher Bassett advised him this could not be included in his weekly earnings calculation as he did not have anything in writing from IRD to confirm his earner status. He was advised if he could provide relevant information that could be taken into account, weekly compensation would be recalculated. [29] On 1 March 2016 Gallagher Bassett wrote to the appellant outlining the key points of the telephone conversation stating: You have advised us that you have had some additional earnings in the 52 weeks immediately before your incapacity and would like your weekly compensation recalculated. As you were a non permanent employee at the date of your incapacity we may be able to include other tax earners as an employee, self employed person or shareholder in the 52 weeks immediately before your incapacity commenced into your long term weekly compensation calculation. You have advised you had earnings as a self employed person in this period. In order for us to be able to consider these as earnings we need you to provide proof of this income to us. [30] The appellant was asked to provide proof he had lodged a tax return with the IRD in the last tax year and he would need to contact the IRD to confirm his self- employed earnings and any other employee earnings he may have had. It stated: When we get your actual earnings for the most recent tax year, we're able to work out if we're paying you the correct amount of weekly compensation. [31] On 11 March 2016 Gallagher Bassett telephoned the appellant again to ask if he had received the consent form posted to him as it needed to be signed. It was explained to the appellant that this was for the purpose of obtaining information that could assist him. [32] A telephone conversation was conducted with the appellant on 14 March 2016. Again, it was explained why his weekly compensation calculation had been reduced to the long-term rate. It was also explained to him that signing the consent form was required for ongoing management of his claim and if he did not sign the form there would be implications on his ongoing entitlements. [33] On 24 March 2016 Gallagher Bassett wrote to the appellant to confirm he would need to provide proof he had lodged a tax return with the IRD in the last tax year, together with proof of his self-employed earnings and other employee earnings he had received. They advised that once this was received they would be able to consider whether he was being paid the correct amount of weekly compensation. [34] On 14 April 2016 the appellant was declared fit to return to normal duties by his GP. [35] A claim closure advice letter was issued on 20 April 2016 and the appellant's weekly compensation ceased. Contact on this file also ceased. [36] It appears the appellant sustained a new accident on 25 April 2016 (non-work related). This claim was managed by the Accident Compensation Corporation. [37] On 30 August 2016 Gallagher Bassett received an email from John Miller Law asking why the appellant was not in receipt of weekly compensation given that he was incapacitated due to his covered injury. John Miller Law was advised the appellant had been cleared for full time duties in April 2016 and had recently lodged a non-work injury claim with the Corporation. [38] On 15 February 2017 the appellant contacted Gallagher Bassett to ask why his claim had been closed as he was unable to work. [39] It was explained to the appellant there was no information on file that indicated that his current incapacity was due to his work injury of 9 December 2015 and invited him to send any information relevant to the issue of incapacity for consideration. [40] On 21 June 2017 the appellant lodged a late application for review, citing a decision of 4 June 2016. He sought reinstatement (and backdating) of his weekly compensation payment and an explanation of why his pay had dropped to $99.00 a week after he was getting $600.00 a week. [41] In respect to his reasons for lodging the application he advised: The decision date passed a long time ago because you have been screwing me around. Just passing the buck. Sent me crap emails, (which I have kept) and elling Donovan Miller crap. So send all my files to Fairway Resolution in Auckland ASAP as they're expecting my files. I have also taken a pitz[sic] of this form. [42] An internal administrative review was carried out by Gallagher Bassett on 24 July 2017 noting no decision had been made or letter sent by Gallagher Bassett on 4 June 2016. [43] On 17 August 2017 Gallagher Bassett issued a decision declining to accept the late application for review. The decision noted: Thank you for your patience while we considered the reasons why you are unable to meet the three month time limit for applying for a review. Unfortunately, based on the information we received, we're still unable to understand which decision of Gallagher Bassett you wish to review as we've not issued any decision dated 04 June 2016. Why we are unable to accept your application: We are unable to accept your application because the circumstances you explained to us shouldn't have prevented you applying in time. [44] The appellant did not apply for a review of that decision. [45] A case conference was held on 10 January 2018 to discuss procedural matters relating to the review, namely the particular decision the appellant sought to review. The Reviewer directed that the appellant's lawyer, Mr Hinchcliff was to advise Fairway of a specific decision the appellant wanted to review. [46] During this time WorkAon took over the management of the claim from Gallagher Bassett. [47] On 11 January 2018 Mr Hinchcliff emailed Fairway and WorkAon to advise that the date of the decision the appellant wished to review was 29 February 2016. This email notes: This was the date that Gallagher Bassett appears to have decided to decrease my client's weekly compensation from $612 to $99 per week. There is no evidence, which I could find, in the file that provides an exact date. There is no written decision issued when this decrease occurred. It appears that my client was told verbally about the decision. The decision was in breach of section 64 of the Accident Compensation Act 2001. The decision was not in writing, my client was not given an explanation for the decision, or information about his rights to apply for a reviw. [48] Mr Hinchcliff later sent in written submissions which he identified the decision for review as "around 23 February 2016 (the date the payment advice was issued)". [49] The review proceeded before Ms Gay, Reviewer on 4 April 2018. She concluded there was no jurisdiction to consider the substantive matter on the basis that the late review application did not identify a reviewable decision. The Position of the Appellant [50] Mr Hinchcliff, acting for the appellant, filed submissions prior to the hearing on 18 March 2019 and also spoke to these at the hearing. [51] He referred to the decision of the Reviewer and her analysis which states: My decision is confined solely to whether I have jurisdiction to consider the issues raised by Mr Trego-Makianu in his application for review. Mr Trego-Makianu's application for review states the application is in respect of the decision of 4 June 2016. However, such a decision does not exist ... my finding is that Mr Trego-Makianu's application for a review does not comply with section 135(2)(c) because it does not identify any decision(s) relating to the above issues in his application for review. Mr Trego-Makianu did not refer to the weekly compensation advice letters, or the date on which to a rate of weekly compensation had dropped. Weekly compensation advice letters are generally held to be decisions in terms of section 64. [52] Mr Hinchcliff refers to the law specifically cl 1 of Schedule 1 of the Act which states that the Corporation is liable to pay or contribute to the cost of entitlements such as surgery and other entitlements needed to treat an injury for which a claimant has cover. [53] Counsel refers to s 64 of the Act which states: 64 Corporation must give notice of decisions (1) The Corporation must give notice of its decision on a claim to the claimant. In the case of a claim for cover for a work-related personal injury to an employee, the Corporation must give notice of its decision on the claim for cover to every employer entitled to apply for a review of that decision. (3 [Repealed 4) Every notice given under this section must- be written; and contain the reasons for the decision; and give the claimant or other person information about his or her rights to apply for review, including details of the time available to do so and an explanation of when applications can be made outside that time. [54] Mr Hinchcliff also states: 18.1 Under section 70 (of the Act) a claimant who has suffered a personal injury for which he or she has cover is entitled to be provided by the Corporation with rehabilitation, to the extent provided by this Act, to assist in restoring the claimant's health, dependence and participation to the maximum extent practicable. [55] He states that under s 117 of the Act the Corporation may suspend, cancel or decline entitlements: 19.1 The Corporation must give the claimant written notice of the proposed suspension or cancellation within a reasonable period before the proposed starting date. [56] Mr Hinchcliff also refers to cl 42 of the First Schedule headed "Weekly Earnings of Employees in Full Time Employment; increased in certain circumstances": Under cl 42 of Schedule 1 - Weekly earnings of earners in full-time employment: increase in certain circumstances: (1) This clause applies to a claimant who - (a) was, immediately before his or her incapacity commenced, - (i) In the category of earners liable to pay the minimum levy set in regulations made for the purposes of section 168B; or (ii) an earner in full-time employment; and (b) had weekly earnings calculated under clause 41 or, if that clause does not apply, under any of clauses 34, 36, 38, or 39 of less than the minimum weekly earnings as determined under subclause (3); and (c) is incapacitated for more than 5 weeks after the incapacity first commenced. (2) For the purpose of calculating weekly compensation for loss of earnings payable to the claimant for any period after the 5-week period, the claimant is deemed to have had, immediately before his or her incapacity commenced, the minimum weekly earnings as determined under subclause (3) The minimum weekly earnings are - (b) for a person 18 years of age or over, the amount as at 1 July each year which is the greater of - (i) the minimum weekly adult rate prescribed under section 4 of the Minimums Wage Act 1983; or (ii) 125% of the rate for a single person over the age of 18 years and without dependent children of supported living payment under the Social Security Act 1965; or (ifi) the higher of the amounts calculated under subparagraphs (i) and (ii) as at 1 July in the preceding year. Subclause (2) does not apply to any period unless the Corporation is satisfied that, but for the incapacity, the claimant would have been an earner in full-time employment during that period. [57] He also refers to https://www.acc.co.nz/assets/business/acc2465-aep-audit- guidelines.pdf, Accredited Employers Programme Audit guidelines, and states : Page 57: The employer has developed a process for ensuring entitlements are assessed in an accurate and timely manner and claimants are notified of decisions in compliance with the legislation. Page 59: The employer needs to demonstrate that all entitlement decisions are confirmed in writing to the injured employee. Entitlement decision letters should include: . the claim number . the injured employee's name . the entitlement that has been accepted or declined . if an entitlement is declined, the reasons for this (which should be clear to the employee) . review rights, even when the application for entitlement has been accepted. [58] Mr Hinchcliff states that in the present case, Gallagher Bassett modified the appellant's weekly compensation payment in breach of the Act. He also states the issue is largely one of the causal link for the appellant's entitlement to weekly compensation, at the minimum prescribed amount, to his incapacity for employment. He states that the courts have inevitably been guided in the issues by the evidence available. [59] In respect to the Evidence counsel refers to: 23/1 1/15 to 29/1 1/15: Note: Kiwisaver deductions; Holiday accrual; and Tax deductions. Tradestaff Email 25.0 23 February 2016: "the branch says that the job he was on could last a couple of months and they think they could find other roles for him when that finishes." Gallagher Bassett Weekly Compensation Advice 26.0 6/4/2016: This decision contained review rights Email Elin Noyer at Gallagher Bassett to anna@tradestaff.co.nz 27.0 20 April 2016: "Please find attached WC Payment Schedule for Matua (11/04/16- 13/04/16)". "This claim will now be closed". [60] In a summary of the substantive matter Mr Hinchcliff states: The appellant's weekly compensation dropped in early February to $136.32 gross per week which left him $99 after tax per week to live on. To qualify to continue receiving compensation, the appellant was asked to see his Employer every week, to continue with rehabilitation and see his GP for medical certificates. Because travel and out of pocket expenses meant the appellant did not have much left from the $99, he pressured his GP to allow him to go back to work so he could afford to look after his family. The appellant could not go back to full time work due to his back injury. The evidence provides no reason explaining why Metua's weekly compensation was adjusted to $136 gross per week. Metua should have been paid the minimum required under cl 42 of Schedule 1 of the Act and he should have continued his entitlements until he returned to full time work. Counsel's submissions state: 37.00 Accordingly it is submitted that the weight of evidence does establish, on the balance of probabilities, the requirement for at least the prescribed minimum weekly compensation payments. 38.00 It is submitted that the decision of Gallagher Bassett acting for ACC is incorrect and the decision quashed. [61] In respect to a summary of the Jurisdictional Matter Mr Hinchcliff states: The Reviewer erred when she stated, "weekly compensation advice letters are generally held to be decisions in terms of s 64". [62] He continues: 40. A decision has to comply with s 64(4)(b) and (c). 40.1 Section 64(4)(b): The weekly compensation advice did not have reasons why the weekly compensation was decreased. 40.2 Section 64(4)(c): The weekly compensation advice did not contain review rights. [63] Mr Hinchcliff states: 41. As there was no decision at the time when weekly compensation was decreased, the Appellant could not file a review application giving a correct date. 42.0 With no review rights attached to the initial decrease in payment decision, the appellant could not file a review. [64] He refers to the decision of Howland' where Joyce J QC stated: And save perhaps where there is no sign at all of uncertainty or contention, the Corporation has an obligation to mark significant turning points or way stations on any claim or entitlement journey by recording appropriate to the circumstances decisions. And those must meet the requirements of s 64 of the Act - namely be written, contain reasons and give advice about review rights. [65] Mr Hinchcliff states: 44.0 The Reviewer held that Mr Trego-Makianu's application for review does not comply with section 135(2)(c) because it does not identify any decision(s) relating to the above issues in his application for review. 45.0 Under s 6 Interpretation, a decision includes a decision about the level of any entitlements to be provided. While s 6 may imply that the weekly compensation change was a decision, s 64 is more specific and relates to "decisions on cover and entitlements". [66] Mr Hinchcliff submits that Gallagher Bassett decided to lower the weekly compensation entitlements and that was a decision which does not comply with s 135(2)(c). [67] Mr Hinchcliff notes that the appellant applied for a review of a decision dated 4 June 2016 around one year later. In his application for review he states: And why you decided to pay me $99 a week after I was getting over $600 a week. [68] Mr Hinchcliff states: Gallagher Bassett's decision without the requirements of s 64 has put us in this jurisdictional quandary. As the Appellant was not clear on review rights, or why weekly compensation was decreased, he could not know to lodge a review or understand what arguments to raise at a hearing. . . . The actions of Gallagher Bassett were in breach of the Act and the decision to decrease weekly compensation should be held not to be a decision and therefore quashed. Howland v Accident Compensation Corporation [2014] NZACC 8 at [59]. [69] Under the hearing, Claim, Mr Hinchcliff states: 52.0 That the decrease in weekly compensation decision never happened. ACC or Gallagher Bassett to pay backdated weekly compensation from when it was changed to around $136 gross per week, to the previous amount or at least the minimum as prescribed under the Act. 53.0 Interest on the backdated weekly compensation, as per section 1 14 of the Act; and 54.0 Payment of costs to Access Law. [70] At the hearing Mr Hinchcliff referred to the decision of the Review officer. He referred to page 80 of the Bundle of Documents (BofD), the second page of the application in the review made by the appeal and states: This provides sufficient information as to what the review was about even if the date of the 4/6/16 was incorrect [71] Mr Hinchcliff refers to part 3 of the application, which asks the reason and what outcome is sought from this application for review, where the appellant stated: Back on ACC. All the backpay you owe me and all the hardship you have put. My family and I thru. And why you decided to pay my $99 a week after I was getting over $600 a week. [72] Mr Hinchcliff refers to page 40 of the BoD, the employer's weekly compensation payment schedule, which is relied on as the documentation in respect to reduction: Gallagher Bassett Employer Weekly Compensation Payment Schedule Employer: Tradestaff Group Lid (Casual Employees Employee: Metua Trego-Makianu Case No.: 0172531 Avg Rate WC Rat Days From Date To Date Gross Payment Type 100%) (80%) Amount Due $158.57 $126.86 5/5 22-Feb-2016 28-Feb-2016 $126.86 Long Term (off work) Total to pay Metua Trego-Makianu $126.86 If you have any questions, please do not hesitate to contact your Claims Administrator on Freephone 0508 333 999 [73] Mr Hinchcliff states there was no reason given to Mr Trego in respect to the change and no explanation why. [74] In respect to a decision Mr Hinchcliff refers to s6 of the Act where the definition of "decision or Corporation's decision" is set out. Position of the Respondent [75] Prior to the hearing Ms Becroft, Counsel for the Corporation, filed written submissions dated 23 April 2019. [76] Ms Becroft set out succinctly what issues are before the Court and refers to the evidence and steps which occurred: 1.1 The Appellant has filed a Notice of Appeal against a review decision of 12 April 2018, which declined jurisdiction on the basis that the Appellant had filed a late review application which did not identify a reviewable decision. 1.2 On 9 December 2015, the Appellant was injured at work. His claim was initially managed by Gallagher Bassett, but it was closed on 20 April 2016 following medical clearance for full-time duties by his general practitioner ("GP"). 1.3 On 21 June 2017, the Appellant lodged a late application for review, citing a decision made by Gallagher Bassett on 4 June 2016. The Appellant was subsequently advised that no decision had been issued on this date. 1.4 On 16 August 2017, Gallagher Bassett issued a decision declining to accept the late application for review. The Appellant did not apply for a review of that decision. 1.5 The review proceeded on 4 April 2018, where it was determined that here was no jurisdiction to consider the substantive matter on the basis that the late review application did not identify a reviewable decision. 1.6 For the appeal, the Appellant argues that no formal decision on the substantive issue has been made and, therefore, Gallagher Bassett was in breach of its obligations under the Accident Compensation Act 2001 ("the 2001 Act"). 1.7 The Corporation submits that there is no jurisdiction to determine the substantive matter on the basis that: The Appellant did not apply for a review of Gallagher Bassett's 16 August 2017 decision declining acceptance of the late review application; and 2) No reviewable decision has been identified. [77] In part 3 of her submission Ms Becroft refers to the circumstances in which a claimant can lodge an application in review. [78] She refers to s 135 of the Act which states: 135 How to apply for review (1) A review application is made by giving an application that complies with subsection (2) to the Corporation. (2) The application must- (a) be written: (b) whenever practicable, be made on the form made available by the Corporation for the purpose: (c) identify the decision or decisions in respect of which it is made: (d) state the grounds on which it is made: if known by the applicant, state the relief sought: be made within 3 months of- (i) the date on which the claimant has a decision under section 58; or (ii) the date on which the Corporation gives notice under section 64; or (ifi) in the case of a decision under the Code, the date on which the claimant is notified of the decision: (g) in the case of a review application relating to a claim for entitlement, not be made less than 21 days after the date the claim for entitlement is made. (3) Despite subsection (2)(f) and (g) and any time frame prescribed in regulations made under section 328A for the lodgement of a review application, the Corporation must accept a late application if satisfied that there are extenuating circumstances that affected the ability of the claimant to meet the time limits, such as- (a) where the claimant was so affected or traumatised by the personal injury giving rise to the review that he or she was unable to consider his or her review rights; or (b) where the claimant made reasonable arrangements to have the application made on his or her behalf by an agent of the claimant, and the agent unreasonably failed to ensure that the application was made within the required time; of (c) where the Corporation failed to notify the claimant of the obligations of persons making an application. [79] Ms Becroft then addresses the application of the law to the factual situation. [80] She states that it appears that the submissions from the appellant are questioning the reduction in weekly compensation from short term to long term. [81] Ms Becroft states however that there are some judicial hurdles which prevent the appellant being able to challenge the substantive matter at the appellant level. [82] She then refers specifically to the late application for review which requires determination of the preliminary issue. [83] Ms Becroft notes that the out of time review application was filed by the appellant on 21 June 2017, and that this must have been late because in fact the file in respect of this claim was closed some 14 months earlier in April 2016. [84] She also notes that the appellant was declared fit to return to his normal duties by his general practitioner prior to the date the file was closed and that letter states: The letter is to advise that your claim has now been closed as the information to hand indicates you have recovered and therefore do not require further assistance ... if you still require assistance or have a recurrence of your symptoms in the future please contact me prior to receiving any treatment or any other intervention to discuss, your eligibility may be reassessed. [85] A claimant satisfaction questionnaire was also enclosed and evidently not returned. [86] Ms Becroft referred to the reasons provided in the late lodgement of the application which has been referred to above. [87] On 16 August 2017, Gallagher Bassett issued a decision declining to accept the late application for review on the basis that the reasons provided would not have prevented him from applying on time. [88] It is also noted that the appellant did not review this decision letter and it is understood from discussion with counsel that an application has now been lodged and is awaiting a review hearing. [89] Ms Becroft states that the facts in this case are similar to Kaulima v Accident Compensation Corporation. 2 2. 2011] NZACC 284. She states that in that case Mr Kaulima had failed to review the decision declining acceptance of a late application for review. Ms Becroft refers to the decision of Judge Ongley who held: [12] The evidence is quite clear that the appellant has not lodged an application for review of that decision, and therefore I find it to be the case that the respondent's primary decision of 25 March 2009 is still in effect and has not been the subject of any review consideration. [13] In terms of this present appeal, I concur with the Reviewer's decision that there is no jurisdiction to consider the correctness or otherwise of that primary decision, as the statutory procedure for review has not been complied with and therefore there is no basis for consideration of the substantive issue, and quite correctly, I find, the Reviewer declined jurisdiction. [14] In the appeal to this Court, I find that this Court's jurisdiction is limited to a determination of whether the review decision was correct, and I find that is clearly the case as there is no right as yet for a Reviewer or the Court, on appeal, to consider the substantive question and that circumstance will not arise until the appellant obtains an order extending the time for the lodging of his application for review of that decision. That situation now would entail the appellant seeking, as a preliminary matter, an order determining that any late application for review of the respondent's decision of 23 November 2010 should be granted. [15] If such an application were to be granted, then the matter would then reach the stage of a Reviewer considering whether the respondent's decision of 23 November 2010, was correct, or whether indeed extenuating circumstances existed. It would only be if such a review decision were to be made in the appellant's favour, would there be able to be a review hearing of the respondent's primary decision of 24 March 2009. It would only then be the situation that this Court would have jurisdiction to consider that substantive issue, should that final review decision be not in the appellant's favour and an appeal be lodged therefrom. [16] That state of affairs cannot arise until the significant procedural constraints have been overcome by decisions favourable to the appellant which would bring the substantive decision of 25 March 2009 to the stage where firstly a Reviewer and then, if necessary, this Court on appeal could consider that substantive issue. [90] Ms Becroft also refers to the decisions of Follett v Accident Compensation Corporations and Murti v Accident Compensation Corporation which held that there is no way around the jurisdictional issue and the appellant will need to lodge a review of the decision declining acceptance of the late review decision. [2016] NZACC 1. [2013] NZACC 286. [91] Ms Becroft then discusses, under the heading "Identifying a Reviewable Decision", the fact the appellant does not identify a decision in respect to which the application for review was made. She refers to the fact that the date originally cited was 4 June 2016, however there was no decision made or letter sent by Gallagher Bassett dated that day. [92] It is noted that Mr Hinchcliff later identified the letter dated 28 February 2016 as the decision date. Again, there was no decision made by Gallagher Bassett on that day. [93] Ms Becroft states: 3.13 There is no application for review of the 23 February 2016 decision, which appears to be the decision relevant to the drop in the amount of weekly compensation. Notwithstanding, even if the appellant intended the decision of 23 February 2016 to be the subject of his review application, his application was still lodged out of time, with his rights to review this decision expiring on 23 May 2016. Gallagher Bassett appropriately declined to accept the late review application on the basis that the Appellant's explanations did not satisfy the criteria for extenuating circumstances, and the appellant did not apply for a review of that decision. As outlined in Kaulima (supra) there is now no way around the jurisdictional issue 3.14 Mr Hinchcliff's submissions argue that no formal decision by Gallagher Bassett (modifying weekly compensation) was ever made. Because there was no decision at the time the appellant's weekly compensation was decreased, he could not file a review application giving a correct date. With respect, it is submitted that the appellant's argument on appeal is misconceived. It is well settled in case law that weekly compensation advice letters constitute reviewable decisions under the legislation. In this case, the weekly compensation advice letters contained clear written rights of review, which were not exercised by the appellant within the 3-month timeframe. [94] In her oral submissions, Ms Becroft submitted that there was no jurisdiction for the Reviewer to determine a substantial matter. This would require the filing of a further late application for review against the Gallagher Bassett decision dated 23 February 2016, or reviewing Gallagher Bassett's decision of 16 August 2017 which declined a late review application. in See Kaulima v ACC [2011] NZACC 284,. Wilce v ACC [2006] NZACC 121, ACC v Rusher [2015] NZACC 322, Poad v ACC [2015] NZACC 290. Discussion [95] These proceedings cannot resolve the issue of whether a decision made by Gallagher Bassett NZ Limited in these proceedings is correct or otherwise. [96] There has been discussion in these proceedings as to what constitutes a decision in respect to identifying a specific date when a decision was made. [97] The decision made by the Corporation was required to have been a date between 23 February 2016 and the effectual closure of this file on 20 April 2016 but has still not been defined by the appellant. [98] Regardless of the establishment of a date, the application for review filed on 21 June 2017 was well outside the three months limitation set out in s 135(3) of the Act. [99] Accordingly, Gallagher Bassett was within its rights to decline to accept the review application based on the appellant not establishing, what Gallagher Bassett deemed as any extenuating circumstances in the application that affected his ability to meet the time limits. I do not accept the position Mr Hinchcliff has advanced that the wording of the application in itself would be sufficient, and in any event that is not the subject matter of this appeal. [100] It is noted on 25 February 2016 that the appellant contacted Gallagher Bassett and requested a review form application which indicates he was fully aware of the procedure that was required. [101] This review is, firstly, out of time and that now requires a separate decision in terms of s 135 of the Act, and secondly, there still remains the question of what decision is being reviewed. [102] Until these issues are determined there is no apparent way forward. [103] Regardless of Mr Hinchcliff advising Fairways that "the decision Metua wants to appeal is the decrease in weekly compensation", this cannot be addressed until the matter of leave is determined. [104] I accept the steps taken by Gallagher Bassett in the decision of 17 August 2017 have created some difficulty. [105] It was made clear, in their letter of 17 August 2017, that they considered there were insufficient reasons put before them by the appellant as to why he was not able to meet the three-month limitation. [106] The letter states that Gallagher Bassett did not accept the application filed late because, although the circumstances had been given consideration, in their view they would not have prevented the appellant from applying within the time limits. [107] The letter of 17 August 2017 from Gallagher Bassett is itself reviewable. [108] As stated in the commentary in Brookers in respect to s 135: The words of section 135(3) are quite clear and require the Corporation in the first instance to investigate and come to a decision as to whether or not it is satisfied that there are extenuating circumstances that affect the ability of the claimant to meet the time limits. [109] It would appear that the second page of the Gallagher Bassett decision of 17 August 2017 was not provided in the Bundle of Documents. [110] However, the decision of the Reviewer at the hearing of 4 April 2018 states that Ms Kaul is now understood as the person who in fact provided and signed the letter of 17 August 2017. [111] Page two of the decision letter states: I've also enclosed an information sheet that explains what to do if you disagree with this decision. There are a number of ways we can work with you to resolve things, so please get in touch and we'll talk about it. 6 Hamish Evans and others (eds) Personal Injury in New Zealand (loose-leaf ed, Brookers) at [AC135.02]. If we can't resolve things easily you may want to have our decision about your late review application reviewed. To do this you will need to apply in writing within three months of the date of this letter. If you've got a good reason why you can't meet this time limit, then we may be able to accept a review application later than this. [112] As noted, the appellant did not lodge an application to review this decision and the matter was forwarded to Fairways Resolution Limited. [113] This has created some confusion as in terms of the decision letter, it states that Resolution Service has been contacted to allocate an independent reviewer to decide whether the appellant would have the "right to review in the circumstances". [114] The second issue which has caused some difficulty, is that, as noted in the review decision, prior to the review hearing there were a number of "case conferences". [115] The first case conference is stated to have been held on 29 August 2017, which included Ms Greg for Gallagher Bassett and Mr de Groot on behalf of the appellant. This involved Reviewer Lindy Clark. The outcome of that meeting is included in the Bundle of Documents (but the wrong date is noted in the review decision). [116] The minutes of that conference state Mr de Groot advised he had only been recently instructed by the appellant to act for him in the treatment injury claim. He also advised that the relevant file was currently in transit and once the file had been considered by him, this present review may well need to be withdrawn. [117] There was a second case conference dated 10 January 2018. [118] The minutes produced for this case conference indicate that the meeting included the Review Officer Ms Rebecca Smith. Mr Hinchcliff was representing the appellant and Ms Greg, it is presumed, was present on behalf of Gallagher Bassett. [119] The purpose of this case conference appeared to be to determine which decision the appellant wished to review. The Reviewer states in her minute: Unfortunately whilst Dr Hinchcliff has had time to consider the substantive matters in respect of the case he had not turned his mind to the decision being reviewed. [120] The Reviewer states that a further case conference would be arranged if required and there was agreement to timetabling: 1. Dr Hinchcliff to provide Fairway Resolutions and Gallagher Bassett with a copy of the specific decision Metua wishes to review by Friday 26 January 2018. 2. Upon receipt of this information I will consider adjourning today's case conference to another date in early March as agreed by the parties. [121] There is subsequently correspondence from Mr Hinchcliff to Fairways advising the date of the decision being reviewed as 29 February 2016. [122] Mr Hinchcliff also raises a considerable number of other issues not relevant to the review. [123] Also, in the Bundle of Documents is an email dated 12 January 2018, from Ms Kaul, case manager for Gallagher Bassett, who is the person who signed the decision letter of 17 August 2017. She states: 1. There is no decision date of 29 February 2016, the date that Metua's weekly compensation was reduced to the "long term rate" was 8/2/2016 and Metua was informed about this via a weekly compensation advice from Gallagher Bassett dated 23/2/2016. Metua's review rights were clearly explained in this advice however no application to review was received. I've also attached a copy of the short term assessment ($681.60 gross), which is paid for four weeks after which the entitlement for casual non permanent workers drops to the long term rate ($126.86). ... . . . 2. If you are reviewing a decision for the decrease in the assessed weekly compensation amount then we will consider this is a new application for review and you are requested to file a fresh application to review. I mention here that the application to review will be almost two years after the decision date. 124] There is ongoing correspondence on the file between Mr Hinchcliff, Fairway Resolution Service and Ms Kaul, and also several emails seeking to reach some agreement as to the basis of the review. [125] However, in her decision, the Reviewer refers to the Relevant Law and states: In terms of section 64(4)(b) of the Accident Compensation Act 2001 ("the Act"), the insurer must give written notice of its decision, which contains the reasons for the decisions and must give review rights. Section 135 of the Accident Compensation Act 2001 ("the Act") details the procedure for applying for a review. In terms of section 135(1) a review application is made by giving an application that complies with subsection (2). In terms of section 135(2)(c) the claimant must identify the decision in respect of which it is made. In terms of section 135(2)(f) a written application for review must be lodged within three months of the date the claimant has a decision under section 58. Section 137(2) states as soon as practicable after receiving an application for review, the Corporation must arrange for an allocation of a Reviewer to the review even if it considers there is no right of review in the circumstances. [126] The Reviewer continues: In Follett v Accident Compensation Corporation [2016] NZACC 1, Judge Maclean noted that, in the circumstances, where a late review application has been declined, and that decision itself has not been reviewed, there was no way round the jurisdictional issue. [127] The Reviewer also states: In Capper (236/2003) the Court held that review jurisdiction cannot be conferred by the parties: [33] The jurisdiction to review a primary decision is conferred by statute and no matter what action the respondent or the reviewer takes, jurisdiction cannot be conferred outside the parameters of the statute. No action taken by the respondent or the reviewer can vest a jurisdiction, which the Act does not give. The reviewer does not have any power to act, other than the power given by the Act (see Steinborn v Minister of Immigration) (M1334-SWO1 Auckland High Court, O'Regan J 20 September 2001). [128] Having established specifically the basis of the review decision, I concur with the Reviewer that the decision can only be confined to whether she had jurisdiction to deal with the issues raised by the appellant in his application for review. [129] It is accepted, as correctly stated by the Reviewer, that the insurer had issued several reviewable decisions during the life of the claim and the appellant's application was in respect to a decision of 4 June 2016. However, such a decision did not exist. [130] The Reviewer also refers to a number of issues that the appellant wanted the Reviewer to consider. [131] Accordingly, the Reviewer make the finding that the appellant's application for review does not comply with s 135(2)(c) because it does not identify any decision relating to the above issues in his application for review. She states: ... Mr Trego-Makianu did not refer to the weekly compensation advice letters or to a date on which the rate of weekly compensation had dropped Mr Hinchcliff submitted there was no weekly compensation decision for Mr Trego-Makianu to identify in his application, because the weekly compensation advice letters were not decisions. [132] The Reviewer notes in a footnote that weekly compensation advice letters are generally held to be decisions in terms of's 64 of the Act. [133] It is noted that Mr Hinchcliff, in respect to this appeal, appears to have determined that cls 35 and 36 of the First Schedule set out the jurisdictional basis for the appellant's weekly compensation. [134] In the case conferences which have been produced in the Bundle of Documents there appears to be a misunderstanding as to the basis of both the review and the present appeal. [135] Some of the ambiguity I find may arise from the wording of the letter of 17 August 2017. [136] The writer, on behalf of Gallagher Bassett stated: Unfortunately, based on the information received, we're still unable to understand which decision of Gallagher Bassett you wish to review as we have not issued any decision dated 4 June 2016. Why we're unable to accept your application We are unable to accept your application because the circumstances you explained to us shouldn't have prevented you from applying in time. What Happens Next We've asked Fairway Resolution Ltd to allocate an independent reviewer to your review to decide whether you have the right of review in the circumstances. To help them make this decision, we've sent a copy of this letter along with A copy of your review application. A letter asking them to allocate a reviewer and set a hearing date for your review. Copies of all the documents that are relevant to the decision that we made about your claim. A list of all the people who may have an interest in your review. [137] The origin of including this in the decision letter may come from the provisions of s 137(2) of the Act which state: 137 Corporation to engage and allocate reviewers 1) The Corporation must engage as many persons as it considers necessary to be reviewers under this Part. (2) As soon as practicable after receiving an application for review, the Corporation must arrange for the allocation of a reviewer to the review even if it considers that there is no right of review in the circumstances (3) If for any reason the Corporation has to allocate a new reviewer to a review, the Corporation must do this as soon as practicable after becoming aware of the need to allocate a new reviewer. [138] The wording of this section is referred to in the commentary in Brookers, which states: Will prevent the cumbersome procedure, under the former Acts, of a second review application being filed when the Corporation rejected the original review application if they considered there was no right of review. [139] Relying on s 137 therefore, on the receipt by the Corporation of an application for review, the matter is sent immediately for allocation of a Reviewer. [140] A further footnote from Brookers in respect to s 137 states:8 Under section 137 the Corporation engages the reviewers. Disputes with accredited employers will be heard by Corporation engaged persons, not At [AC 137.02] 00 At [AC137.03] adjudicators appointed by the accredited employer. However, in the first instance, the review application is forwarded to the accredited employer (or his or her third part administrator) who forwards it to the Corporation reviewers. [141] As noted, the application for review dated 1 June 2017, states the name of the employer as Tradestaff Group Limited (Holdings). There is no indication that Tradestaff Group Limited or Gallagher Bassett forwarded this review on to any Reviewer, as the decision made by Gallagher Bassett is, in the first instance, to give consideration to s 135(3), to consider the extenuating circumstances relating to the late application. [142] After the decision was made by Gallagher Bassett stating they were not able to accept the late review application, their next step appears to be to refer the matter to Fairway Resolution Limited for the purpose of allocating a Reviewer. [143] This was obviously in addition to page two of the decision which provided review details to the appellant. [144] The commentary in respect to s 137 would indicate that the Corporation is defined in s 259 of the Act, which refers to the "Accident Compensation Corporation established by the Accident Injury Act 1998 is continued" and in respect to s 261 of the Act which states: Except as otherwise specified in this Act, or as required by virtue of any delegation to a Crown entity subsidiary of the Corporation, a reference in this Act to the Corporation is not to be read as including a reference to any Crown entity subsidiary of the Corporation. [145] The wording of the decision letter, specifically the last paragraph, suggests that alternative resolution could be considered, which would suggest mediation of some sort. However, the case conferences prior to this review do not fulfil this function. It is noted, at the time of the review hearing the parties included the appellant and apparently after the second case conference WorkAon had taken over the claim from Gallagher Bassett. Accordingly, it is questionable whether s 137 was applied to any other identity than the Corporation (and its successors). Conclusion [146] It is accepted that the scope of the review could only be in respect to the narrow issue of jurisdiction and did not encompass an examination of the wording of the weekly compensation advice letter or any jurisdictions arising from this. [147] The referral by Gallagher Bassett to Fairways questions whether in fact, pursuant to s 137(2), an insurer is entitled to take the steps noted in the Brookers' footnote. [148] I find in any event, as did the Reviewer, that the referral to the Reviewer does not of itself confer jurisdiction, and that according to case law the Reviewer was correct that she could not override the requirements of the Act and accept jurisdiction where the application for review does not comply with the provisions of the Act. [149] Accordingly, the Reviewer was correct that the only finding she could make was that she had no jurisdiction to consider any decision on the claim file, and in particular no jurisdiction to consider the substantive issue relating to the reduction in the rate of weekly compensation. Result [150] Accordingly, I find that the Court lacks jurisdiction to address the substantive issue dated back to the decision of the Corporation. Given that there has been no review filed by the appellant in respect to the decision of 10 August 2017, the issues raised from s 135(3) relating to the late application, and the circumstances surrounding that are also not able to be addressed [151] It is noted there has now been an application for review filed in respect to that matter which will be addressed in due course. [152] I find the pursuit of this appeal is totally without merit and the appeal is struck out. [153] There is no order as to costs. Judge J H Walker District Court Judge Solicitors: Neil Shaw, Barrister, Auckland for the appellant Medico Law, Auckland for the respondent ACR 238-18-Trego-amended version