Amalfitano v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 4 4/ 26 UNDER The Accident Rehabilitation and 38/ 95/ 5013 Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN NOELENE EMILY AMALFITANO of Papakura Appellant (Appeal No. DCA 18/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Ms L R Kaye on behalf of the appellant and from Mr A E Howman for the respondent with the request that I issue a decision on the papers. Ms Kaye also requested the Registrar to seek an early decision, if that was possible, as in her view whatever the outcome of this appeal one party or the other would seek leave to appeal to the High Court. The reason for this request is that there is already an appeal based on similar facts set down for hearing in the High Court in July and it is anticipated that if either party decides to seek leave to appeal against this decision both appeals can be heard together. The issue in this appeal is the decision of the respondent to decline lump sum awards to the appellant. There is no argument as to the facts which give rise to the appeal. The appellant lodged a claim with the respondent which is dated 5 October 1993 in which she stated that she suffered personal injury by accident in a road accident on 21 December 1990. She claimed that during treatment for the injuries sustained in that accident she received a blood transfusion of contaminated blood as a result of which she contracted the Hepatitis C virus. The respondent advised the appellant 2 that it considered the result of the blood transfusion to be a new claim separate from the claim in respect of injuries sustained in the 1990 accident. The respondent had accepted that the appellant was entitled to lump sum awards for the injuries she sustained in the 1990 accident, but that her claim in relation to the contraction of Hepatitis C was a new claim which fell to be decided under the provisions of the Accident Rehabilitation and Compensation Insurance Act 1992. The respondent advised the appellant on 18 July 1994 that in relation to the contraction of the Hepatitis C virus she was entitled to a cover under the 1992 Act and was therefore eligible only for an independence allowance. The appellant applied for a review of that decision which was upheld by the review officer. The review officer recorded the fact that the appellant had suffered a unfortunate condition as a result of the blood transfusion with contaminated blood and that she was the object of wide spread sympathy to the extent that the local branch of the respondent's office considered that she should be entitled to lump sum awards. However, the review officer considered that as the appellant had not made the election required under s.147 of the 1992 Act by the cut-off date of 1 April 1993, there was no discretion which would entitle him to interfere with the respondent's primary decision. Both counsel have provided me with extensive submissions which I do not propose to repeat in this decision because of the request for urgency. In addition, I have a very firm view as to what the decision should be. I agree with the review officer and with the respondent that the injuries sustained by the appellant in the motor vehicle accident on 21 December 1990 constituted a personal injury by accident for which she was entitled to cover and to awards under the Accident Compensation Act 1982. I consider that the transfusion of contaminated blood during the course of treatment for the injuries sustained in that accident must stand alone as a separate personal injury by accident and be the subject of a separate claim. I do not accept Ms Kaye's submission that it is part and parcel of the injuries arising out of the accident in December 1990. I consider that it constitutes a second accident in the nature of a "medical mishap" within the meaning of those words as defined in the 1992 Act. While it is unfortunate that the appellant did not become aware of her position until her blood was tested for a quite extraneous reason in 1993, I do not consider that that is a ground for concluding that it should be deemed a consequence of the 1990 accident. I consider that it is medical mishap quite separate from the other accident and must be treated as such. The issue then falls to be decided under the transitional provisions of the 1992 Act. While the transfusion took place in 1990, had its consequences been known and a claim lodged by 1 October 1992, the appellant would have been a person who had suffered personal injury by accident within the meaning of the Accident Compensation Act 1982. However, the appellant did not learn of the problem 3 until 1993 with the result that her claim brings her within the transitional provisions of s.135(5) of the 1992 Act. Consequently the claim must be considered under the provisions of the 1992 Act. Pursuant to s.147(2), as the appellant had not received any payment under the provisions of the Accident Compensation Act 1982, and had not lodged a claim with the respondent by 1 October 1992, her only entitlement is to an independence allowance under the 1992 Act. Accordingly I agree with the decision of the review officer and the appeal must be dismissed. DATED at WELLINGTON this / 7 day of Femme 1996 bemodule A W'Middleton District Court Judge dc18-95(rd)