Conza v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT AT AUCKLAND Decision No. 2/5 /97 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN MICHAEL DAVID CONZA Appellant DCA 082/96 AND ACCIDENT REHABILIATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the Ist day of October 1997 APPEARANCES Mr K W Reid for appellant Mr MG Colson for the respondent DECISION OF JUDGE M J BEATTIE The issues in this appeal are: 2 Whether the Corporation on review under s.89 of the Act had jurisdiction to hear a request for review of the Corporation's decision dated 8th November 1994 and ii. If a review of the Corporation's decision can be so had, whether the Corporation's decision that the appellant's claim falls to be determined under the provisions of the 1992 Act was correct. Background Facts On the 22nd of February 1990 the appellant, then aged 16 years, was involved in a road accident when his bicycle collided with a bus. He suffered a compound fracture of the hip and was admitted to Middlemore Hospital for the purposes of treatment of his injuries. During the appellant's stay in hospital he received a blood transfusion. This transfusion took place about 7 days after the date of his admission. On the 14th of May 1990 the Corporation received a claim from the appellant in relation to the physical injuries he received in that accident. On the 16th of May 1990 the Corporation wrote to the appellant to inform him that it had received and accepted his claim. There appears to have been no further action on that file which was given a specified number and which related to the claim for a compound fracture of the hip. In or about October or November 1992 the appellant was a blood donor at his school. As a result of tests performed on the blood donated it was established that the appellant was infected with hepatitis C. It transpired, and is not in issue, that this infection was due to the appellant being given contaminated blood in the blood transfusion he received in February 1990. 3 On the 28th of March 1994 the appellant lodged a claim for medical misadventure in relation to the contracting of hepatitis C from the contaminated blood transfusion. That claim was assigned its own separate number. On the 18th of July 1994 the Corporation responded to that claim as follows: "Claim for Cover (Medical Misadventure) Claim No: D1201891/002 I am pleased to advise you that based on the findings of the Medical Misadventure Advisory Committee, your claim for cover has been accepted by the Corporation. Your file has been transferred to the Manukau City Branch, and should be received by them in the next few days Please telephone Manukau City Branch to discuss any entitlements. Please find enclosed a copy of the Advisory Committee's findings." The file discloses that the appellant began receiving weekly compensation but it appears that the appellant and his father, who was effectively handling the claim on his son's behalf, were not satisfied with the way the claim was being handled and on the 5th October 1994 the appellant's father wrote to the appellant's case manager Mr Palmer as follows: "Claim No D1201891/002 - Medical Misadventure - Michael Conza We are writing to you to express concern of the matters relating to this claim. To date we have received nothing in writing from your department as to what and how Accident Compensation intends to handle this claim. Everything to date has been dealt with verbally, which we find totally unsatisfactory. 4 To date we have supplied all the information requested by Accident Compensation Department. This has amount to medical certificates from Doctor Ah Kit, dating back to 1992. These certificates state Michael is only fit for light duties. Your latest request to supply a medical certificate showing Michael is fully fit to do the work of a storeman at Dixon Wholesale Stationers, East Tamaki will not be supplied for the following reasons; 1. To say Michael is fully fit would be completely untrue. 2. After seven weeks Michael found that he could not cope physically with the job and had to leave. The reason given by your department for this request that if Michaels medical condition worsened and he did have to leave work then these future claims would be based on the income he earned whilst being employed. This does not appear to be logical because Michael has ample proof of the income earned whilst a storeman at Dixons Wholesalers. Any court would up hold the proof that if Michael was fully fit then this is the income he could expect as a storeman and for his present age. Therefore the matters that have to be dealt with are; 1. How is your department dealing with the back claim and from what date. 2. What does the department intend doing in regard to an income for Michael at present now that he has no employment. 3. Michael intends to take a course Youth with a Mission in February 1995 which is for six months as per the material supplied meets the Government qualification standards. 5 Once again, this claim was accepted in July 1994. It is now October 1994 and there seems to be no resolution to Michaels past claim or what is happening presently we that your department communicate to us in writing covering all aspects of Michaels claim. If you have any queries please do not hesitate to contact Michael or myself on Ph anytime. Documents supplied with this letter (Dixon Wholesale Payslips, Resignation letter to Dixons Wholesalers)." The Corporations' file discloses that the appellant and his father had an interview with Mr Palmer on the 5th October at the time of receipt of that letter. The notes of that interview are as follows: "Michael and father called in. He has resigned on 30/9/94 from his position as storeman. Discussed file and they were concerned that no formal decisions have been issued out to them in writing. Indicated to them that the reason why is that we were still gathering information for the file to process the claim. Said I would make a payment to Michael by Friday 7/10/94 and got IRD and bank account numbers from him. I indicated that I would issue a letter out to him concerning the assessment on W/Comp. Also asked if he would get a letter from his school re date of leaving." The next item on the file is a further letter from Mr Conza dated 25th October 1994 which is as follows: "Further to our letter dated the 5th October 94 and the personal interview held the same day between myself, my father and yourself we once again write to you expressing our concerns the way this claim is being handled. 6 To date the only formal notification we have received from your department in regard to my claim is a payment advice indicating to myself the payments that your department intends making to me and the conditions set in regard to this payment being ongoing. It was expressed to you in person of our concerns relating to this case and the fact that we had not received any formal notification of your decisions relating to this claim. We have been told numerous times that we have the right to ask for a review of every decision that your department makes, yet unless we have these decisions in writing from your department we cannot ask for a review. We were also given the impression that it would not worth reviewing the decisions because they all have been based on the current compensation act. We were assured by yourself that we would receive a letter outlining the departments decisions, to date this letter has not been forthcoming. (1) We have been informed verbally only, that the department will only accept my claim from 1992, we disagree with this decision. Also in regard to this we have only been told verbally what compensation is going to be made and how these figures was reached, nothing formally has been forthcoming. (2) A decision has been made in regard to the payment I receive weekly, we disagree with this decision. (3) Your department has been asked to look at funding a retraining course for myself which starts in February 95 - to this end we supply the letter requested by yourself from my doctor stating that I am mentally and physically able to cope with such course. As this course starts in early 95 we ask that this matter be dealt with as soon as possible so that we can move forward in regard to enroling as the numbers that can take this course are limited. 7 The way your department has handled this case since accepting the claim has in my opinion disadvantaged myself. The department has been making decisions without giving the proper notification of the decision and on what basis the decision was made. To date we have complied with every request from your department regarding information (with the exception of one - a misleading medical certificate) to enable the department to make balanced decisions regarding my claim, yet it appears from our point of view that every time we approach the department we are told something new or we are requested for more information. Your department takes delight in advertising nation wide via television that it is here to help people yet to us it appears that you are not helping but hindering this claim. We have informed you that we do not agree with what appears to be the bulk of your verbal decisions and that we intend seeking a review when we finally are told formally. We also intend to take further the way and manner this case has been handled." That letter was responded to by ACC by letter dated 8 November 1994 the relevant part of which is as follows: "In response to your letter to Bruce Palmer dated 25th October 1994. I have reviewed your file and have conferred with the Medical Misadventure Unit about your claim. 1. CLAIM ACCEPTED UNDER 1992 ACT On the 18th of July 1994 you received a letter from Trish Jennings accepting cover for your claim under the provisions of the Accident Rehabilitation and Compensation Insurance Act of 1992. If you do not 8 agree that your claim falls under the 1992 Act you should write a letter to Trish stating this and the Act that you think the claim should be accepted under. She will then respond to your letter stating the reasons why the claim is under the 1992 Act and offer you review rights for that decision." Two days later on the 10th November the Corporation again wrote to Mr Conza dealing firstly with the claim for medical misadventure and then a letter in considerable detail regarding his entitlement to weekly compensation. At the foot of page 3 of this letter is the following quote: "If you are not satisfied with this decision or if there is something you do not understand you should contact this office immediately and discuss your concerns. We will explain the decision and explain your right to ask that the decision be reviewed. If you do want the decision to be reviewed a request must be sent in writing using a special form available from our office. The written request for a review decision must be received within three months from the date of this letter. Should you have any questions with regard to the content of this letter please do not hesitate to contact me. Signed Bruce Palmer" The file discloses that there was considerable further contact between the Corporation and the Conzas over the next few months over the question of weekly compensation and in or about December 1994 Mr Keith Reid solicitor began acting for the appellant. He filed a review in relation to the weekly compensation aspect but in relation to the question of whether the claim for medical misadventure should be dealt with under the 1992 Act was not addressed until an application for review was filed by Mr Reid on the appellant's behalf on the 6th of June 1995. That application for review seeks to review the decision in writing of the 8th November 1994 when "ACC confirmed that the medical misadventure claim will not be handled under the 1982 Act." 9 Submissions The appellant's submissions are threefold. Firstly a claim was made on 14 May 1990 in relation to the injuries sustained in the motor accident and whilst no further activity has taken place on that claim file, there is no reason why the present claim for medical misadventure cannot be considered under that file as part of the whole question of that accident. The second submission is that Mr Conza's letter of 5th October 1994, received by the Corporation as it was within three months of the letter of 18 July 1994, was a clear indication that Mr Conza wished the July decision to be reviewed. Thirdly that the time when the medical misadventure occurred was at the date of the blood transfusion. The consequence of the foregoing submissions being that the Review Officer's decision was wrong and the claim for medical misadventure should be considered under the 1982 Act. The respondent's submissions were to the effect that the appellant's letter of 5th October 1994 could not be construed as a request for a review. That the Corporation was not advised of a request for review until June 1995, some seven months after the letter of 8th November 1994 and that accordingly the application for review is out of time. It was submitted that the appellant's application for review is out of time regardless of which letter from the Corporation is deemed to be the "decision" for the purposes of s.89. Should the Corporation's submissions in regard to time limit be not accepted it nevertheless submits that as a consequence of s.63 of the 1992 Act a claim for medical misadventure shall be deemed to have been suffered from the date when the person first received treatment for that injury as a personal injury. On the facts of this case that could not have occurred before October or November 1992 10 when it was determined that the appellant did have hepatitis C. The 1992 Act came into force on Ist July 1992 and accordingly the claim falls to be determined under that Act. The respondent submits that the appellant cannot take the claim back in time to the date of the filing of his claim for his hip injury caused in the motor accident as the claim form then filed related solely to that physical injury. It is submitted there is clear authority that the contracting of hepatitis C from a blood transfusion is in all things a separate injury and separate accident from the accident/ injury that necessitates the blood transfusion. Decision Dealing firstly with the issue of whether the Corporation's decision letter of 8 November 1994 could be the subject of a review or indeed whether its earlier letter of the 18th of July 1994 constituted a decision letter which was capable of review, I find that on the facts of this case neither of those decisions are now so reviewable by this appellant. Section 89(5)(b) prescribes a three month period from the date on which the notice in writing has been given of the decision in respect of which a review is sought for the making of the review application. It has been held by this Court on several occasions that the time limit there prescribed does not permit any discretion to allow for a late filing. The principal decision determining that is the decision of his Honour Judge Middleton in Zehnder v ARCIC (73/95). I follow that decision and the reasoning for it. Allowing even for the most favourable interpretation or meaning I find that the appellant's letter of 5th October 1994 cannot be construed as signalling an intention to seek a review of the decision of 18th July 1994. Regrettably for the appellant the letter of 25th October, which I would rule does give sufficient indication of a desire to question the decision, is outside the three month period by some 7 days. 11 It has been established that no special form needs to be adhered to for the purposes of indicating a request to review the Corporation's decision and I would hold that the wording in the letter of 25th October does so give the necessary indication. However, as I have indicated, the law is clear that the three month period is not capable of being extended by the exercise of any discretion. The irony of the situation is that the letters of the Corporation of 8 and 10 November 1994 did follow soon after and there were clear indications given of a right of review but for whatever reason the appellant did not see fit to take any such step until his legal adviser lodged an application dated 1st June 1995. I have considered the provisions of s.89 and find that its interpretation does not permit the making of an application to review a decision which had not at that date been made. The only request for review which I can regard as being a clear indication that the appellant was not content to have the medical misadventure claim dealt with under the 1992 Act is in the application for review dated 1st of June 1995. Accordingly, for the reasons given the Corporation's decision in its letters cannot be the subject of review. The Review Officer's determination that there was no jurisdiction to review that decision is upheld. In the event that this decision should be proved wrong in law I turn to consider the substantive question namely whether the appellant's claim can be dealt with under the 1982 Act. I find that it is clear that there were two separate incidents for which the appellant sought cover, the first being in respect of the fracture of his hip caused in the motor accident on the 22nd of February 1990. A claim specific to that accident was duly lodged. 12 The second being the blood transfusion which transmitted the hepatitis C virus and which occurred at a separate time some 7 days or so after the motor accident. In the decision of Accident Rehabilitation and Compensation Insurance Corporation v ABC, a decision of Justice Tompkins delivered on 17th September 1996, his Honour was there required to consider not two but rather three "incidents". The claimant had suffered injury to his left knee. He required blood transfusions. As a consequence of those blood transfusions he subsequently tested positive for HIV and hepatitis C. His Honour determined that each of those three events were separate personal injury by accident and that a claim for one could not be construed to incorporate a claim for any of the other two particularly as the infection accidents were not discovered until well after the date of the original physical injury. All three were separate in time. That being the case I find that the appellant cannot seek to include the personal injury by accident which is the infection of hepatitis C in the original claim lodged on the 14th of May 1990. At that time no one was aware of the fact of that infection. The claim for medical misadventure was lodged on the 28th of March 1994 and as such it was outside the provisions of s.135(3) in so far as time for lodging for consideration under the 1982 Act is concerned. Furthermore s.63 of the Act provides that where a claim involves medical misadventure personal injury shall be deemed to have been suffered on the date on which the person first received treatment for that personal injury as that personal injury. The appellant could not have received any treatment for that personal injury before November 1992 being the time it was first discovered. That was after the coming into force of the 1992 Act and so therefore by virtue of the deeming provisions of s.63 the personal injury cannot be said to have been suffered before Ist of July 1992. 13 Accordingly then for those reasons the substantive question posed in this appeal must be answered in the negative and that this appellant is not able to have his claim for medical misadventure determined under the provisions of the 1982 Act. For the foregoing reasons the appeal against the Review Officer's decision is dismissed. DATED this 3ist day of October 1997 Beathe M.J. Beattie District Court Judge Conza.doc KD