Vahaakolo v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 136 199 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 OFA TUHI VAHAAKOLO DCA 347/98 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 14th day of April 1999 APPEARANCES: Mr L C Brown counsel for appellant Ms E Hook counsel for respondent RESERVED JUDGMENT OF JUDGE M J BEATTIE The primary decision of the respondent in respect of which this appellant sought a review and then an appeal to this Court was in respect of the reassessment of the appellant for the purposes of her independence allowance entitlement. 2 The appellant had suffered personal injury by medical misadventure in 1991 as a consequence of which she has suffered a severe hearing impairment. Her initial assessment for an independence allowance established a 42.7% disability score under the Functional Limitations Profile Questionnaire. She was subsequently re-assessed under the new criteria (provided by the amended regulations) of the American Medical Association Guide. Her whole person impairment was assessed at 13%. It was that decision which was the respondent's primary decision and the appellant sought a review of that decision. At the review hearing the appellant did not so much question the validity of the assessment for her independence allowance, but rather was concerned that the question of lump sum entitlement for her hearing loss had still not been addressed by the respondent. For the purposes of his decision the Review Officer indicated that his jurisdiction was solely confined to the primary decision of the Corporation in respect of that independence allowance and that the question of any entitlement under the 1982 Act to a lump sum had not been the subject of any primary decision in respect of which any review had been sought. When the matter came before this Court on appeal, counsel for the appellant indicated that the appellant was not pursuing the appeal as it related to the correctness of the respondent's decision as to her independence allowance entitlement, it being accepted that decision was correct. Counsel for the appellant nevertheless requested the Court to exercise its equitable jurisdiction and allow for consideration of the appellant's entitlement to a lump sum. He requested that the Court look at it from the stand point of fairness and justice. This Court has now had the opportunity of reviewing the Corporation's file as it relates to the appellant and on the face of it there are matters which are of concern. It is evident that the appellant did make an application for cover by letter of 31 August 1992 to the respondent's branch at Otahuhu. That letter gave quite sufficient particulars and included, inter alia, a claim for the loss of hearing she had suffered as the result of the ear operations which had caused her deafness. The file discloses that that letter was acknowledged by the branch manager of the Otahuhu office of the respondent by letter of 20 August 1992. The letter acknowledging receipt of the appellant's application for cover went on to advise that her claim was being considered and that she would be notified of a decision as soon as possible. As far as the Court can discern from the file, no further action was taken by the respondent on that letter and it was not until the appellant's GP, in conjunction with an ENT Specialist, Mr Glennie, came into the picture in March 1993 that the matter was addressed and indeed it seems as though a fresh application was then filed through the agency of the appellant's GP, Dr Morrison of the Otara Medical Centre. The file discloses that by letter dated 18 March 1993 the appellant made written request for lump sum for her loss of hearing and it seems that a long the way thereafter that aspect has not been addressed. Whilst this Court does not express any opinion at this time, because it may not have the correct interpretation of the sequence of events, nevertheless there are indications on this file which point to this appellant possibly still having an entitlement to a lump sum under the 1982 Act should she so elect to pursue that course. This is certainly a matter where the respondent has not yet made an adjudication. Whilst this Court cannot, in the context of its decision in this appeal, give a direction to do so, it nevertheless indicates that should the appellant or her legal representatives make such an application then it will need to be addressed and considered. 4 This Court is not able to exercise any equitable jurisdiction in the context of appeals under the Accident Rehabilitation and Compensation Act and consider the matter as a matter of justice and fairness without the necessary statutory underpinning and in the context of this appellant's claims it is premature for this Court to express any view. The views expressed herein are the extent to which the Court feels it can go in response to counsel for the appellant's plea and the matter must now be left to the appellant and her legal advisors to consider what action she should take. For the purposes of this appeal however, it is accepted that the decision of the respondent was correct as it related to her independence allowance and accordingly the appeal is dismissed. DATED at WELLINGTON this day of June 1999 M J Beattie District Court Judge Vahaakolo.doc(gm)