T v Accident Rehabilitation and Compensation Insurance Corporation

Decision No. /3/ 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 19-94- 5242 BETWEEN PAULINE TITO of Christchurch Appellant (Appeal No. DCA 24/95) 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 There are two issues in this appeal being: 1. Whether the appellant is entitled to lump sum compensation under the Accident Compensation Act 1982; and 2. Whether the failure of the respondent to commence the review hearing within three months of the lodging of the application entitles the appellant to a decision in her favour pursuant to s.90(9) of the Accident Rehabilitation and Compensation Insurance Act 1992. I have received submissions from Mr M R Shepherd, advocate for the appellant and from Mr N G Morrison on behalf of the respondent with the request that I issue a decision on the papers. The facts which give rise to the appeal are that on 28 September 1992 the appellant lodged a claim with the Corporation and in answer to the question requesting the date of the accident she said "trauma occurred over a period of several years" and under the question asking how this had happened she answered "consequence of abandonment & subsequent foster care". She claimed that the injuries she had suffered were "psychological trauma". 2 This claim was accompanied by a certificate from her General Practitioner, Dr Savage, which is dated 14 August 1992. On 23 July 1993, the appellant lodged a further claim with the respondent requesting cover and expenses for "emotional distress due to sexual abuse - abused by step brothers over a period of 10 years". This latter claim was supported by a report from a counsellor, Cathy MacPherson. On 16 September 1993, the respondent accepted the second claim and on receipt of the acceptance the appellant's advocate inquired as to entitlement for a lump sum award. On 21 October 1993, the respondent notified the appellant's advocate that she was not entitled to a lump sum award because the application had not been lodged with the respondent prior to 1 October 1992 as required by the 1992 Act. The appellant's advocate then lodged an application for review in which it was stated that the claim was related to the first claim which had been filed on 28 September 1992. The application is dated 17 December 1993 but does not appear to have been received by the respondent until 10 July 1994. The matter then went to a review hearing on 2 November 1994 which was adjourned at the request of the appellant's advocate. Prior to the review hearing being reconvened on 7 December 1994, the appellant's advocate submitted that in terms of s.90(9) the appellant was entitled to a decision in her favour because of the failure of the respondent to commence the review hearing within three months of the application having been lodged. The review officer declined both applications for review and this appeal follows. The appellant's advocate submitted that the appellant's position was preserved by the provisions of s.135(3) of the 1992 Act as she had suffered a period of abuse by her step brothers for a period of some 10 years. He submitted that the appellant had previously lodged a claim for mental trauma associated with the ramifications of abandonment and foster care and that all the same issues which arose out of that claim were involved with this claim. He submitted that therefore it was demonstrated that a claim had been lodged prior to 30 October 1992 because the first claim was lodged on 14 August 1992 and could be dealt with under the 1982 Act. The appellant's advocate submitted further that there had been no delay on the part of the appellant in seeking the review and that all the delay was on the part of the respondent so that she was entitled to a decision in her favour pursuant to s.90(9). Mr Morrison submitted that I should have regard to the remarks of Hardie Boys J in Childs v Hillock [1994] NZAR 97 in which he discussed the ramifications of s.135(5). In that decision he said: "It is not a section creating rights, but rather one that ameliorates the consequences of the change from a more generous scheme. Under the new Act 3 certain eventualities occurring after 1 July 1992, that were covered under the earlier Acts, are no longer covered. The earlier Acts having been repealed as at 1 July 1992, unclaimed cover under those Acts in respect of those eventualities would come to an end unless preserved. Subs(5) preserves them for three months. If opportunity is not taken to lodge a claim, then cover is list. This is not a plainly unintended result. There may be hard cases; but no doubt the line had to be drawn somewhere." Mr Morrison also referred me to the decision of Judge Kerr in G (11/94) in which he had considered the position of a claimant who had lodged one application for cover prior to 1 October 1992 setting the date of injury to be 1975. Both parties accepted that the appellant's doctor should have been aware and noted that multiple abuse had occurred between dates in 1976 and 1982. In his decision Judge Kerr said: "No matter how one reads the claim form prepared and submitted by the doctor, there is only one year on it, namely 1975, and whilst "sexual abuse" might be interpreted as encompassing more than one incident of sexual molestation, because those words "sexual abuse" are governed by the year 1975, the sexual abuse can only relate to 1975. Accordingly unless the multi-sexual abuse took place in 1975, the claim must be restricted to the one incident. That therefore means, the claim cannot include the 1976 and 1982 incidents." The position as I see it is that s. 135 of the 1992 Act sets out the transitional position regarding claims for personal injury by accident which have occurred prior to the introduction of the 1992 legislation and the manner in which they are thereafter to be considered. It is acknowledged that an applicant who had cover under either the 1972 or 1982 Acts is deemed to have suffered personal injury that is covered by the 1992 Act. In order to obtain lump sum awards under either the 1972 or 1982 Acts, the applicant must lodge a claim with the respondent prior to 1 October 1992. Furthermore, s.147 of the 1992 Act requires that where a person is entitled to lump sum awards under either the 1972 or 1982 Act and has made a claim, that person must also lodge an election notice to receive that compensation, such notice to be lodged prior to 31 March 1993. If an applicant who has cover under either the 1972 or 1982 Act has not lodged a claim prior to 1 October 1992 and the personal injury by accident is also personal injury within the meaning of the 1992 Act, then that person is entitled to cover under 1992 Act. I agree with Mr Morrison's submission that while s.135(5) may operate to take away the appellant's formal rights as provided in Childs v Hillock most of her rights are preserved by s.63(3) which does enable her to lodge a claim under the 1992 Act in respect of abuse that predates 1966, despite the fact that the most recent incident was in 1977. I consider that it is quite clear that the appellant's claim of 23 July 1993 in respect of emotional stress due to sexual abuse is a quite separate and specific claim and cannot be related to the earlier claim submitted on 28 September 1992 for trauma as a result of abandonment and foster care. Accordingly, in so far as that issue on 4 appeal is concerned, I agree with the decision of the review officer and the appeal is dismissed. In relation to the issue of s.90(9), while there can be no doubt that the delay in holding a review hearing was not contributed by any actions of the appellant, the issue for resolution particularly devolved on the question of eligibility for a lump sum award under ss.135 and 147 of the 1992 Act. I am satisfied that that entitlement did not exist because the claim had been filed out of time. Accordingly, I agree with Mr Morrison's submission that in those circumstances s.90(9) cannot now operate to require the respondent to make a finding which is ultra vires its powers. That issue of the appeal is also dismissed. DATED at WELLINGTON this 18 day of MARCH 1996 A W Middleton District Court Judge dc24-95.doc(rd)