Williams v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 078/2004 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN PAULINE DOROTHY WILLIAMS of Raumati South Appellant (Appeal No. AI 400/03) AND - ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at WELLINGTON on 12 February 2004 APPEARANCES/COUNSEL H. Armstrong for appellant W. Wickham for respondent RESERVED JUDGMENT OF JUDGE J. CADENHEAD The Issue [1] The issue is whether or not the respondent’s decision of 5 June 2003 rejecting the appellant’s application for review on the ground it was out of time under s.135 of the Injury, Prevention, Rehabilitation, and Compensation Act 2001 was correct. https://openlawnz-my.sharepoint.com/personal/andrew_openlaw_nz/Documents/ACC Decisions (DC appeals)/2004/078- 2004.doc AE Background of Facts [2] The appellant lodged a claim with the respondent for a rotator cuff shoulder syndrome on 17 October 2002. [3] The claim form notes that the injury was sustained on 20 June 2002, and occurred when the appellant opened a dishwasher. [4] Following consideration of the available medical evidence, the respondent declined the appellant’s claim for cover on the grounds that it was a gradual process injury, and in these particular circumstances it was not work related. [5] A decision letter was issued on 6 November 2002, and was posted to the appellant at her usual address, being 5 Renown Road, Raumati South. [6] The claim decision said that the respondent, after considering all the information available to it, had found that the cause of the injury was not defined as an accident. The respondent advised that the condition was a gradual process condition, and that only work related gradual process injuries could be considered for cover. Therefore, the claim for cover was declined as the injury was not work related. The letter than went on and said that the ACC was not able to pay any medical treatment costs or other entitlements related to the claim. The letter set out that there was a right to have this decision formally reviewed, and a requirement that a review must be lodged within three months of the date of the decision, or at a later time in extenuating circumstances. [7] It is noted that the reviewer in his review decision said that it was not challenged that the ACC had set out the appellant’s review rights relating to the 6 November decision letter. He held that was enough to fulfil its obligations under the particular subsection of the Act. [8] On 21 November 2002, the respondent wrote to the appellant confirming the 6 November 2002 decision. This letter was in response to a letter written by Dr Brent Krivan, dated 11 November 2002, where the doctor wrote saying he understood that the appellant had been declined accident compensation. He felt that she met the criteria for cover, and would appreciate the respondent reconsidering its decision on the issue of accident compensation cover. 078-2004 2 [9] In its letter of 21 November 2002, the respondent wrote saying that it had reconsidered this claim for the injury. It repeated the reason the claim had been declined was because the condition which the claim was made was that of gradual process and that only work related gradual process injuries could be considered for cover. Because of this, the claim could not be accepted, and the respondent was unable to pay for any medical treatment or compensation costs. The letter indicated that the appellant should contact her treatment provider to discuss payment for the treatment. The letter indicated that the respondent would like to discuss this decision. It gave a contact phone number. The letter was addressed to the appellant at 5 Renown Road, Raumati South. A copy of the letter was also sent to Dr Brent Krivan, Team Medical at Kapiti Coastlands, Paraparumu. [10] At the review hearing the appellant stated that she had not received the 21 November 2002 letter sent from the respondent confirming its cover decision. [11] In a letter dated 14 July 2003, Team Medical confirmed that payments had been received from the Accident Compensation Corporation for physiotherapy for visits on 17 October 2002, 21 October 2002, 23 October 2002, 30 October 2002, 1 November 2002, 6 November 2002, 8 November 2002, 11 November 2002 and 14 November 2002. [12] In addition, Team Medical confirmed that it had received payments from the respondent for 14 October 2002, 11 November 2002, 19 November 2002. Payments for visits on 10 February 2003 and 14 April 2003 had been declined. [13] The appellant contends that the reason for her delay in lodging the review application was because she was under the impression that, contrary to the respondent’s decision letter declining her claim for cover, the respondent had accepted her claim for cover. The basis for her belief was that subsequent to issuing its letter declining the claim, the respondent had on occasions paid her medical treatment fees. The respondent contends that these fees were paid in error. [14] The submission of the appellant is that the combination of circumstances constituted a type of extenuating circumstance envisaged by s.135(3) of the Act. [15] The respondent submits that it is in accordance with its practice that it paid the appellant’s medical treatment fees for up to five days after the date on which it had declined her claim i.e. 6 November 2002. 078-2004 3 [16] On 14 and 19 November 2002, the respondent paid two additional medical treatment fees in error. The respondent was not aware that those payments had been made until the appellant mentioned them in the course of lodging her application for review. [17] On 9 May 2003, the respondent received an application for payment of the costs of surgery to the appellant’s right shoulder. [18] The respondent responded to the appellant on 14 May 2003, declining her request on the grounds that she did not have an accepted claim, because her original claim for cover had been declined. [19] On 4 June 2003, the respondent received an application for review from the appellant challenging the decision to decline funding for her surgery. [20] A letter setting out in writing the reasons for the respondent’s position was sent to the appellant on 5 June 2003. This letter explained that the request for surgery could not proceed, when cover had been declined for her original claim. The letter explained that if the appellant disagreed with the Corporation’s decision of 6 November 2002, she should lodge an application for a review of that decision. The letter noted that unfortunately her review application would be lodged outside the three month time frame to new applicants. [21] An application for review was received on 17 June 2003. The application stated that because of a complete misunderstanding and extenuating circumstances, that she was entitled to cover from 6 November 2002. [22] In a review decision dated 24 July 2003, the reviewer declined the application for review. 078-2004 4 The Review Decision [23] The reviewer said for the review application to be made within the three month time limit, it would have to have been received by 5 February 2003. The parties agree that the review application was outside the three month time limit. [24] The issue in this case was whether or not pursuant to s.135(3) of the 2001 Act the three month time limit could be waived because of extenuating circumstances. [25] The appellant submitted that the circumstances were of a type that would fall within the concept of extenuating circumstances. The appellant did not challenge that the ACC issued review rights with its 6 November decision letter. [26] The reviewer held that that in itself was enough to fulfil its obligations under this subsection of the Act. Furthermore, the reviewer confirmed this decision by way of letter on 21 November 2002. The reviewer said this was after Mrs Williams had discovered the respondent had paid for some of her medical costs. The reviewer held that in terms of s.307 of the Act the 21 November letter was deemed, in the absence of proof to the contrary, to have been sent to Mrs Williams. He said that while this was not crucial to his finding, he found that this was a further factor in determining that there were no extenuating circumstances. The Relevant Legislation and Legal Principles [27] Section 64 of the Act imposes upon the respondent the following duties in respect to giving notice of a primary decision: “64 Corporation must give notice of decisions (1) The Corporation must give notice of its decision on a claim to the claimant. (2) 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) In the case of a claim for personal injury caused by medical error, the Corporation must give notice of its decision on the claim for cover under section 078-2004 5 48(a) or (b) to every treatment provider, registered health professional, or organisation whose action or inaction was the ground of the claim. (4) Every notice given under this section must— (a) be written; and (b) contain the reasons for the decision; and (c) 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.” [28] In this case there is no dispute that the appellant received a decision letter dated 6 November 2002 that complied with this section and adequately advised her of her review rights and the time these must be exercised within. These review rights should have been exercised within 3 months from the date of that letter. [29] Section 135 of the Act provides as follows: “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: (e) if known by the applicant, state the relief sought: (f) 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 (iii) 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. 078-2004 6 (3) Despite subsection (2)(f) and (g), 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; or (c) where the Corporation failed to notify the claimant of the obligations of persons making an application.” [30] It is this section that grounds this appeal. Earlier legislation did not provide for any latitude or relief, if the application for review was not filed timeously. A series of District Court appeal decisions confirmed this situation. No doubt to provide some flexibility in the review structure section 135(3) was enacted. The respondent ‘must accept a late application, if satisfied that there are extenuating circumstances that affected the ability of the claimant to meet the time limits’. The legislation then goes on and gives three examples of what may constitute extenuating circumstances and briefly paraphrased these are: a) Where the claimant was so affected or traumatised by the personal injury giving rise to the review that the person was unable to consider the review rights. b) Where the claimant had made reasonable arrangements to have the application made on the person’s behalf and the agent unreasonably failed to ensure that the application was made within the required time. c) Where the Corporation failed to notify the claimant of the obligations of persons making the application. [31] Section 5 of the Interpretation Act 1999 provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose. This approach rests upon the twin pillars of the section, namely, consideration of the text and its relevant objectives. [32] In R v Pora [2001] 2 NZLR 37 the judgments of Elias CJ and Tipping J at p.43 state that the Courts must give effect to the will of Parliament as expressed in 078-2004 7 the legislation. The first step was to understand the meaning of the Act, as ascertained from its text, and in the light of its purpose (s.5(1) of the Interpretation Act). The organisation and format of the enactment is an indication as to its meaning: s.5(3) of the Interpretation Act. Both the text and the purpose of the Act must be read in context. In construing that legislation the Court of Appeal had regard to the long title of the Act that was under consideration. [33] Generally the present section 135(3) appears to have been passed to rectify the mischief of the lack of flexibility in the previous legislative provisions concerning the ability to review decisions that had not been brought within the time limits, (see Statutory Interpretation, Bennion (3rd) p 715 as to legal mischief). The purpose of the present legislation is to preserve a balance between the principle of finality of decision within a certain time frame, against that of the ability to extend time for the correction of an unjust decision. The present statutory framework has laid down statutory guidelines to the meet the conflict of these two opposing tensions. Section 5 of the Interpretation Act 1999 provides that the meaning of an enactment must be ascertained from its text and in the light of its purpose. [34] The first area of concentration must be to ascertain the ‘extenuating circumstances’ that affected the ability of the claimant to meet the time limits: that is there must exist circumstances that affected the ability of the claimant to meet the time limits. Examples are then given in the section as to what could amount to circumstances that would affect the ability of the claimant. Section 5(2) and (3) of the Interpretation Act 1999 provide that in ascertaining the meaning of an enactment indications of examples may be used. As Professor J.F. Burrows states in his book Statute Law in New Zealand, p.81, the use of examples is new in New Zealand. [35] As appears in Statutory Interpretation, Bennion (3rd) pp 568 if Parliament thinks fit to include in an Act examples of how the Act is intended to operate, these examples are clearly of strong persuasive authority. The examples show how Parliament itself contemplated how the Act would work. In Escoigne Properties Ltd v Inland Revenue Commissioners [1958] AC 549 Lord Denning said at pp 566: “Thus one of the best ways, I find, of understanding a statute is to take some specific which, by common consent, are intended to be covered by it. I can say at once: “Yes, that is the sort of thing Parliament intended to “cover”. The reason is not far to seek. When the draftsman is drawing the Act, he has in mind particular instances which he wishes to cover. He frames a formula which he hopes will embrace them all with precision. But the formula is as unintelligible as a mathematical formula to anyone except experts: and even then they have to know what the symbols mean. To make it intelligible, you must know the sort of thing that 078-2004 8 Parliament had in mind. So you have resort to particular instances to gather the meaning.” [36] Similarly in Amin v Entry Clearance Officer [1983] 2 All ER 864 (HL) Lord Fraser said at page 870 that the legislative examples given in the section under consideration were not exhaustive, but they were useful pointers to aid in the construction of the section. In the section under consideration here the general description of extenuating circumstances are fleshed out by the examples given. The ability of a claimant to meet the time limits might have been affected by his own personal injury, the actions or inaction of a third party, or the action or inaction of the Corporation in respect to the notification of the claimants obligations in making a review application. As I comprehend the statutory examples here are not to be construed as rigidly specific, but they provide pointers and guidance of what may constitute exculpatory instances. The use of the words “such as” provides a flexibility of approach and underlines the examples given are not exhaustive. [37] Thus, it might be that mere forgetfulness of itself, given the absence of a causative traumatic disabling injury that could affect the decision not to review, would not be sufficient. Again, on the other hand, if the Corporation innocently represented a situation pertaining to the existence of cover, or as to the exercise of the claimant’s obligations as to applying for a review, then that type of circumstances might amount to extenuating circumstances affecting the ability of the claimant. The body of precedent in this area should accrue incrementally upon a case by case basis against the statutory criteria, as is common with any developing or new area of the law. The Submissions of the Appellant [38] The appellant submits that the appellant’s general practitioner wrote to the respondent on 11 November requesting it to reconsider the decision on the basis of medical grounds stated therein. In mid-November 2002, the appellant sent payments to Kapiti Radiology, only to receive a call back advising her that the respondent had paid for her x-rays. The appellant subsequently enquired as to her other treatment providers regarding the injury – a physiotherapist and an acupuncturist – and likewise they advised her that the respondent had paid for her services. [39] The submission is that in response to this the appellant drew the conclusion that in response to her general practitioner’s letter, the respondent had reversed its 078-2004 9 decision. The appellant submits that it was only when she applied to the respondent for certain surgery costs, that the respondent declined her request in a letter dated 14 May 2003. It was only at this time that she realised that the respondent had not changed its original decision. [40] On appeal, the appellant submits that the reason for the lateness of her review application was the above combination of circumstances, and that this is the type of extenuating circumstance envisaged by s.135(3) of the Injury, Prevention, Rehabilitation, and Compensation Act 2001. The appellant submits that s.135(3) correctly read is inclusive and not restrictive by reference to the fundamental right of access to the Courts. [41] The appellant claims that she did not receive the letter of 21 November 2002. The reviewer found this letter relevant but not crucial to his decision, and held there were no extenuating circumstances. [42] The submission is that it was reasonable for the appellant to believe that the respondent had in fact reversed its earlier decision in response to her general practitioner’s letter of 11 November 2002. This decision letter of 6 November 2002 made it clear that payment could only follow cover. The contention is that the doctor’s request to reconsider, coupled with payment by the respondent for medical services, were grounds for a reasonable belief that the appellant in fact been granted cover, and that it was not until the review hearing of 21 July 2003 that the respondent admitted having been mistaken in the payment of medical costs. [43] The appellant filed an affidavit dated 21 August 2003 reiterating the substance of the submissions. In particular, the appellant said in the following paragraphs of her affidavit: “08 Having been advised by ACC that I did not have cover for my injury, I sent a cheque to Kapiti Radiology in mid-November in payment for their X-ray examination, only to receive a telephone call informing me that ACC had paid for that service. Subsequently, I made enquiries of the other treatment providers – Scott Physiotherapy, Dr. Krivan and Nathan Scott my acupuncturist. All of them advised me that ACC had paid for the medical treatments that they had provided. I have since received written advice concerning these payments. 09 On re-reading the ACC decision letter of 6 November 2002, it was my conclusion that (in response to my Dr’s letter of 11 November) ACC had reversed its decision about cover. 078-2004 10 In the decision letter, ACC had stated quite clearly: the injury was deemed to be a gradual process condition: therefore, the cover claim was declined: therefore no medical treatment or other costs could be paid. But ACC had paid all my medical treatment costs! I therefore concluded that my claim was now covered and that ACC had revised its decision about my injury. 10 I have had no experience with ACC before. I was not aware that ACC would have to advise me in writing if they changed their decision. I relied on what I had been told in writing on 6 November – namely, that ACC were unable to pay treatment and other costs when the injury was not covered. The link between cover and payments seemed to me to be unambiguous in that letter. Had ACC not paid my treatment costs, I certainly would have requested a review of the 6 November decision – my GP was so definite that my injury was an accident within ACC definitions and practice. It was ACC’s actions (in paying all my costs when they had earlier written to say that they could not if I did not have cover) which caused me no to proceed with the review application at that time. 11 By the time of my last physiotherapy session on 19 November, the pain in my shoulder had eased considerably. However, it returned with a vengeance in February 2003 and persisted. My doctor referred me to Mr. Alistair Grant, orthopaedic specialist. He recommended surgery and applied to ACC on my behalf for surgery costs. Mr. Grant was definite that my injury had been caused by an accident incident in wrenching open the dishwasher door. He opined that an ultrasound scan and the radiologist’s report gave no cause to interpret my condition as a gradual process one. He wrote to ACC (Dunedin) to this effect on 28 May 2003. 12 ACC wrote to me on 14 May 2003, declining the request for surgery funding. This was when I realised that ACC had not changed its decision about the original October 2002 cover claim.” The Submissions of the Respondent [44] On a factual level, the respondent points to the letter of 21 November 2002 and the fact that the letter was not only addressed to the appellant, but to her doctor. The respondent also points to the fact that payments for visits made to her doctor on 10 February 2003 and 14 April 2003 were declined by the respondent. The respondent submits that the appellant has not demonstrated that there were extenuating circumstances such as affected her ability to bring the application timeously. 078-2004 11 Decision [45] At the review hearing it is noted that those present were the advocate for the appellant, and the representative for the respondent. It does not appear that the general practitioner gave evidence at the review hearing, nor did the appellant. Although, the review hearing is ambiguous in that it states in one particular paragraph that Mrs Williams stated that she did not receive the 21 November 2002 letter from the ACC confirming this cover decision. [46] Certainly there is no credibility finding in the review decision upon regard to this important issue. [47] It seems clear that the decision letter of 6 November 2002 was received by the appellant. In that decision letter, in my view, the provisions of the legislation were complied with, and the appellant was fully advised of her rights, and informed that a review must be lodged within three months of the date of the decision. However, the issue that arises in this case is whether or not the circumstances then arising amounted to extenuating circumstances that affected the ability of the appellant to meet the time limit. [48] The appellant contends that she was aware that her doctor had written on 11 November 2002 asking that the respondent reconsider its decision on the issue of accident compensation cover. She says that after that date, in mid-November, she sent a cheque to Kapiti Radiology in payment of their x-ray examination, only to receive a telephone call advising her that the respondent had paid for that service. This was in contradiction to the advice that she had received from the respondent that she did not have cover for her injury. She said that she made further enquiries of other treatment providers, Scott Physiotherapy, Dr Krivan and Nathan Scott her acupuncturist, and all of them advised that the respondent had paid for the medical treatments that they had provided. In support of her statement she provided written evidence to that effect. [49] On re-reading the respondent’s decision letter of 6 November 2002, she said that she drew the conclusion that the respondent, in response to her doctor’s letter, had reversed its decision about cover. 078-2004 12 [50] The appellant had had no previous knowledge of the respondent’s practice of paying medical treatment or other costs after the claim had been declined. The appellant says that she was not aware that the respondent would have had to have advised her in writing that they had changed their decision. The appellant said that if her treatment costs had not been paid she would have requested a review of the decision of 6 November 2002. [51] The position of the appellant is that until the respondent wrote to her on 14 May 2003 declining her request for surgery funding, she did not realise that the respondent had not changed its original decision. [52] The appellant says that it never received the letter of 21 November 2002, and consequently was not appraised of the reasons in that letter wherein the respondent had declined to reconsider her claim for cover. That letter makes it quite clear that the claim would not be accepted, and that the respondent would not pay for any medical treatment or compensation costs. The letter advised her to contact her treatment provider to discuss payment for that treatment. [53] Unfortunately, there is no finding by the reviewer on whether or not he accepted the appellant’s evidence on this issue. [54] Again, the issue of what the doctor did, as the letter was also sent to him, and that the appellant was advised to contact her medical practitioner regarding the respondent’s declinature of her claim. This factual situation was not traversed at the review hearing. [55] Further, the payments that were declined by the respondent on 10 February 2003 and 14 April 2003 do not appear to have been canvassed either by the appellant or the respondent, as to whether the appellant was aware of those facts. [56] The review officer relied upon s.307 of the Act, namely, that the letter of 21 November 2002 confirming the decision of 6 November 2002 had been posted to the usual address of the appellant. Section 307(5) provides a document posted under subsection (3)(b) is deemed to have been delivered to the person at the time it would have been delivered in the ordinary course of post. For the purposes of proving delivery: 078-2004 13 [a] It is sufficient to prove that the document was properly addressed; and [b] The document is presumed, in the absence of proof to the contrary, to have been posted on the day on which it was dated. [57] In the case of Dobson (Decision No. 290/2003, AI 85/03) Judge Beattie, interpreting similar legislation to the present, found that the section raised an irrebuttable presumption as to time of delivery, but a rebuttable presumption as to the fact of delivery. I concur with the interpretation of His Honour. In view of the assertions of the appellant a factual finding has to be made on this issue. [58] I am of the view, that if the appellant can show that the respondent’s actions in erroneously making payments after the request of her local doctor to reconsider the issue, induced her to not make an application for review, then those circumstances might fall broadly within the parameters of the example illustrative in s.3(c) of s.135. However, factual findings must be made as to the issue raised in this decision, and that of course, and those findings would be a matter for the review officer. [59] The issue of whether the letter was also sent to her doctor and received by her doctor, and what advice her doctor gave to the appellant, may well be a relevant factor. Another relevant factor might be that there were payments declined at a much earlier date than the appellant says that she became aware for the first time that her claim had been declined. [60] All these factual issues should be determined at a review hearing. In order that time and expense are saved, I would encourage the practice of hearing concurrently the review on the merits of the original primary decision along with the review as to the application to extend time. That practice has been commended in Hetherington v Carpenter 9 PRNZ 1, where the Court of Appeal thought that applications for special leave should be dealt with at the same time as the substantive appeal. The merits might well be part of any decision regarding the application for extension of time. [61] For the reasons that I have given, I would allow the appeal, and direct that 078-2004 14 there be a review hearing on the issues that I have outlined. The appellant will be entitled to costs of $750 plus disbursements. DATED at Wellington this 23rd day of March 2004 (J. Cadenhead) District Court Judge 078-2004 15