PRS v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 169 197 HELD AT CHRISTCHURCH 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 PRS Appellant (Appeal No. DCA 256/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 26th day of June 1997 NAME OF APPELLANT NOT TO BE PUBLISHED APPEARANCES Appellant in person C Taylor for respondent DECISION OF JUDGE D A ONGLEY This is an appeal against the decision of a review officer delivered on 25 October 1995 declining payment of lump sum compensation. The decision of the Corporation conferred a grant of a disability allowance to the appellant beginning 7 June 1995 at the rate of 100%. The rate was later reduced to 97% because of an earlier lump sum payment. The appellant in fact suffered several separate incidents of sexual and physical abuse during her life from her infancy until 1992. She is now aware that if she had had access to proper advice she could have applied for separate awards of lump sum compensation in respect of separate "accidents". Her sad history of being prevented - 2- from taking control of her life has resulted in her being victimised by others and being deprived of access to the professional advice that would have enabled her to make the claims to which she would undoubtedly have been entitled. She has now been recognised as entitled to a disability allowance of almost the maximum amount, but the Corporation's records show that she did not make any claim specifying physical or sexual abuse until November 1992, by which time she could no longer obtain the advantage of lump sum compensation which had been available under the Accident Compensation Act 1982. Section 135(3) of the Accident Rehabilitation and Compensation Insurance Act 1992 permitted lump sum applications only for claims lodged before 1 October 1992. The purpose of the appeal was to try to establish that earlier claims were in fact lodged. The Corporation has co-operated in extracting what records it has. This appeal can only be determined by reference to reliable evidence. Unfortunately, there is nothing in the material available to the Court that can support the appellant's belief that she made a claim in respect of sexual abuse as long ago as 1974. In the course of the inquiry, the appellant has obtained her medical records going back to 13 July 1974 when she was injured in a motor accident and was treated in Burwood Hospital for injuries including facial lacerations. She was then discharged after five days. In 1989 it became necessary for the appellant to undergo revision of scar tissue on part of her face. She applied for payment from the Corporation for admission to a private hospital. That was declined and the operation eventually took place at Burwood Hospital on 3 April 1991. The Corporation recorded a claim for surgical treatment under No. 86/89/637499. A point which concerns the appellant is that the Corporation acknowledges that payments for surgical treatment must have been made in 1974 but there is no record of the claim, not even a claim number. It appears therefore that some records have been mislaid. There remains a possibility that, at the same time, the appellant may have claimed for other sexual assault injuries. If she had, the ordinary course of events would have involved an investigation of the claim, entailing further inquiries of the appellant, medical confirmation of aspects of the claim, and counselling or treatment. If there had been a follow-up of that kind, some vestige of it would surely remain. The appellant is not able, for her part, to provide any information to confirm that she did see a doctor or counsellor. She does say that she received counselling paid for by the Corporation. If that was so, there is still no record of it, and no information of any particulars that could be checked. Regrettably, it would not be a responsible discharge of the Court's function to accept the appellant's unconfirmed assertion. Taking the matter a step further, even if a claim was made and no lump sum payment was paid to the appellant, the 1992 Act now requires that the appellant must establish both a written application for lump sum compensation and an election to receive that compensation instead of the disability allowance. The hurdles are insurmountable. The records which are available show that the appellant was in a highly abusive relationship during 1992. She was hospitalised at Waikato Hospital in July 1992 and the hospital notes contain some record of communications with her and her abusive - 3 . partner. That resulted in a claim for compensation made in writing on 27 November 1992 which was allocated the number Q1880241/002. That claim was lodged after the commencement of the 1992 Act and it did not carry any entitlement for lump sum compensation. It related to physical abuse. In 1993, the Corporation accepted liability for payments on a general practitioner's referral to counselling for "sexually and physically abusive relationship". The respondent asserts that that is the first mention of sexual abuse in the claims history recorded by the Corporation. Apparently, counselling for sexual abuse was outside the scope of the 1992 claim. No doubt the consequences of recent physical abuse and other abuse over a long period of time were inseparable and it would not have been possible for counselling to have been confined to one aspect. On 1 March 1995 the appellant completed an M46 form claiming compensation for sexual and physical abuse. The 1995 claim was given the claim No. Q1880241/004. That is the claim which resulted in an independence allowance. When processing that claim, the Corporation made inquiries of a counsellor at Motueka. She informed the Corporation that the appellant had attended a sexual abuse survivors group about two years before, and both the appellant and the counsellor were under the impression that a sensitive claim had already been filed. The counsellor noted that she was paid under claim No. Q1880241/002. She advised the Corporation of a chronology of abuse that occurred beginning when the appellant was about four years old. Counselling has been paid for under both the 002 and 004 numbers. That is the broad extent of the available evidence. In this decision there is no need to set out the detailed requirements of s 147 of the 1992 Act, being the transitional provision that enables payment for lump sum claims that had not been paid out by the commencement of the new legislation on 1 July 1992. The appellant is unable to establish the requirement of having made an application for compensation before 1 October 1992. Therefore, the appeal cannot succeed and it is dismissed. DATED at WELLINGTON this /( th day of August 1997 D A Ongley District Court Judge