Busch v Accident Rehabilitation and Compensation Insurance Corporation

Decision No. 69195 IN THE DISTRICT COURT DCA No. 294/94 HELD AT WELLINGTON UNDER THE Accident Rehabilitation and Compensation Insurance Act 45 / 94/ 10 79 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN R. BUSCH APPELLANT AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION RESPONDENT Heard at Auckland on 27 March 1995 Date of Decision: 3 July 1995 Counsel: E.J. Meffin as Counsel for the appellant Ms P. Zumbach as Counsel for the respondent RESERVED DECISION OF JUDGE J.H. LOVELL-SMITH The issue in this appeal is the respondent's decision that the appellant is not entitled to lump sum compensation because the requirements of s.147 of the Accident Rehabilitation and Compensation Insurance Act 1992 have not been complied with. 2. At the hearing of this appeal, the matter was adjourned to allow Counsel for the respondent to file submissions on the issues raised by Counsel for the appellant, within 21 days reserving the appellant the right to reply within fourteen days from receipt of the respondent's submissions. The appellant suffered serious and multiple injuries as a result of a motor bike accident on 20 January 1991. The respondent received a Cl advice of injury form, a first medical certificate, two further medical certificates, an M46 claim for treatment expenses, a C12 consent form for the giving of information, and a C3 earning certificate from the appellant's employer in respect of the accident. The respondent accepted the appellant's claim on 21 February 1991 as personal injury by accident and payment of earnings related compensation was assessed. Payment of medical fees was made together with a contribution towards replacement items damaged at the time of the accident, but no other action was taken in respect of the claim after May 1991 until 3 December 1993 when the respondent received an M46 claim for cover and treatment costs form, which apparently duplicated the original claim. The appellant told the Review Officer that he believed at the time he completed the Cl advice of injury form, that he was applying for all compensation that he was entitled to arising from the accident, and that this entitlement included lump sum compensation. The respondent's file note dated 2 March 1994 records a discussion the appellant had regarding lump sum compensation. The respondent wrote to the appellant on 15 March 1994 advising him that he had no entitlement to lump sum compensation because the respondent had not received an election 3. notice from him, but he may however, be entitled to an independent allowance. The appellant applied for review of that decision raising his concern that he was not advised of any details regarding a lump sum. He did not know that he had suffered permanent neurological damage until after November/December 1993, and he was not aware that he was entitled to a lump sum. The Review Officer in his decision adopted the findings of Judge Imrie in Black (66/94), and determined the appellant was not entitled to lump sum compensation pursuant to s. 147 as although a claim for cover had been lodged before 1 October 1992, no written application for lump sum compensation had been made before 1 April 1993, and no written election for lump sum compensation had been made by 31 March 1993. Section 147 of the Act provides:- "Compensation for non-economic loss - (1) Where any person had an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 but has not received that compensation and makes written application for that compensation before the 1st day of April 1993, that person shall be entitled to payment under those sections if payment is made on or before the 30th day of June 1995 or after that date if pursuant to a decision given on review or appeal under Part IX of the Accident Compensation Act 1982 as continued in force by section 152 of this Act. 4. (2) Where any person has suffered personal injury by accident to which the Accident Compensation Act 1972 or the Accident Compensation Act 1982 applies, and - (a) That person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 in respect of that personal injury, but has not received any payment under any of those sections in respect of that personal injury; and (b) That person would have an entitlement to an independence allowance under this Act if the personal injury had been suffered on the Ist day of July 1992 - that person shall be entitled to elect in writing, not later than the 31st day of March 1993, to receive either his or her entitlement under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982, or an independence allowance under and subject to the conditions of this Act, but not both. (2A) For the avoidance of doubt, it is hereby declared that, for the purposes of subsections (1) and (2) of this section, no person has an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 unless a claim in respect of the personal injury by accident had been lodged with the Corporation before the Ist day of October 1992. (3) Subject to section 148 of this Act, if - (a) No payment has been made in respect of personal injury by accident under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982; and 5. (b) No payment is made under subsection (1) of this section; and (c) No election is made under subsection (2) of this section - " Mr Meffin submitted that the appellant's completion of a Cl form at the invitation of the respondent prior to 1 April 1993 constituted a written application for lump sum compensation pursuant to section 147(1) of the Act. Thus it was unnecessary. for the appellant to make a written election for lump sum compensation, and he was therefore entitled to lump sum compensation. Mr Meffin submitted that the appellant's claim may be readily distinguished from the Black decision (No.66/94) as the appellant was invited by the Corporation's letter to him of 4 February 1991 stated:- "If you wish to claim for any other benefits, e.g. private specialists treatment costs, transport expenses, damaged clothing, earnings related compensation etc., it will be necessary for you to complete a Cl advice of injury form (enclosed) ..." The appellant completed that form and was therefore making a written application for all benefits available which included lump sum compensation. Accordingly, he had therefore complied with s.147(1). The appellant believed that at the time he completed the Cl form, he was applying for all compensation that he was entitled to arising from his accident, and that this entitlement included lump sum compensation. Mr. Meffin referred to Brooker's Accident Compensation New Zealand p.IH-12 paragraph 147.04: lump sum compensation payable until 30 June 6. 1995. If a claimant has not received lump sum payments for permanent loss or impairment of bodily function or for pain and suffering and loss of enjoyment of life under the 1972 or 1982 Compensation Act, and has made written application before 1 April 1993, compensation will be paid up to 30 June 1995 or after that date if the compensation is payable as a result of a decision of a Review Officer or the Appeal Authority. " Mr Meffin contended that "it is noteworthy that the text does not refer to or in any way state that making an election is mandatory in respect of the obtaining of lump sum compensation pursuant to s. 147(1)." In support of that proposition, Mr Meffin further submitted that in order for s.147(2) to apply, the claimant has to have an entitlement to lump sum compensation, and has not received any payment, and have an entitlement to an independence allowance, and in those circumstances the person shall be entitled to elect in writing to receive an entitlement under sections 78 and 79 or an independence allowance. Mr Meffin submitted that on the basis of the decision in Bright and Others (No. 95/94) lump sum compensation can be paid so long as the applicant has made written application for compensation before 1 April 1993. In this case, he contended, the Cl form is an application for lump sum compensation. Alternatively, Mr Meffin submitted that if s. 147(2) "is held to have potential application" to the appellant, then it did not apply for the following reasons:- 7. "( i) There is a need for the Corporation to have shown that Mr Busch has an entitlement to independence allowance; and (ii) This would have had to have been determined by the Corporation prior to the Act declining his lump sum compensation; and (iii) All of this would have had to have been communicated to Mr Busch to allow him reasonable time to comply with the requirement prior to 31 March 1993 and thus protect his existing rights." Mr Meffin contended that this s. 147(2) does not apply to the appellant because subsection (1) is a stand alone subsection. Section 147(2) was not mandatory and only applied where a claimant has a right to an independence allowance. In his view, if it were interpreted otherwise, what would happen to those claimants who had a right to lump sum compensation, and who made an election for an independence allowance but had no right to an independence allowance? Furthermore the respondent was under an obligation to bring to the appellant's attention, the requirements to enable him to receive lump sum compensation if these requirements were altered by the 1992 Act. As the appellant had failed to do so, the appellant remained entitled to lump sum compensation. The appellant who wished to be considered for lump sum . compensation never received the letter referred to in the Corporation's decision letter dated 15 March 1994 which states:- "A letter was sent to all claimants who had indicated that they wanted to be considered for lump sum compensation following an accident." 8. Mr Meffin also contended that the Corporation's letter was "knowingly incorrect as the Corporation wrote to many claimants advising that it was not possible to notify all claimants by letter in respect of lump sum entitlement". He took the view that the Corporation has not acted in good faith. Mr Meffin further submitted that the appellant has an entitlement to lump sum compensation pursuant to s. 135 of the 1992 Act which provides:- "135. Relationship of this Act and former Acts - (1) Any person who has had a claim accepted for personal injury within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 suffered before the 1st day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act. (2) Nothing in subsection (1) of this section shall apply if it is subsequently determined that the person had not suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982. (3) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the Ist day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the 1st day of October 1992, shall have the acceptability of the claim determined under the Accident Compensation Act 1982 as if it had not been repealed. (4) Where subsection (3) of this section applies, the continued entitlement of the person to rehabilitation, compensation, grants, and allowances shall be determined under those Acts, as appropriate, but subject to this Part of this Act. 9. (5) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is covered by either of those Acts, and who has not lodged a claim with the Corporation in respect of that personal injury by accident before the 1st day of October 1992, shall be cover under this Act only if that personal injury by accident is also personal injury that [would be covered by this Act had it occurred on or after the 1st day of July 1992]." In particular, Mr Meffin relies on s.135(3) and contends that the appellant's claim should be determined under the 1982 Act as if it had not been repealed. Section 135(4) states that where subsection (3) of the section applies the continued entitlement of the person to compensation shall be determined under those Acts as appropriate, but the subject of Part of this Act. Subsection (3) does not refer to s. 147 he submitted, and is not subject to any proviso relating to s. 147. Thus under subsection (3), a claimant such as the appellant still has the right to lump sum compensation provided the requirements of subsection (3) have been complied with as in the case of the appellant, who suffered an accident before 1 July 1992 and lodged a claim prior to 1 October 1992. Mr Meffin further submitted that the provisions of s.147 can be interpreted to refer to those claimants who had not lodged a formal claim for lump sum compensation prior to 1 October 1992, and were given additional time until 1 April to make formal written application. The appellant completed the Cl form at the invitation of the respondent, and taking into account the wording used by the Corporation in its letter, the appellant indicated that he wished to be considered for lump sum ---------- "--..... 10. compensation as a result of his accident. The Corporation should have contacted the appellant to advise him of the requirements for lump sum compensation. Mr Meffin contended that in not doing so the respondent was in breach of its own policy under the 1982 and 1992 Acts, and in breach of its duty to act in good faith fairly and reasonably in respect of the appellant's claim. Mr Meffin contended that the Corporation failed to advise the appellant of any additional requirements in order for him to retain his right to lump sum compensation, and then declined his claim. The Corporation, therefore, was in breach of s.27(1) of the New Zealand Bill of Rights Act 1990 in that it failed to observe the principles of natural justice by not disclosing matters of prejudice pursuant to s.6 of the Bill of Rights s. 147 should be interpreted to preserve those existing rights. Mr Meffin also relied on s.27 of New Zealand Bill of Rights Act 1990 being the right to justice in particular the right to observance of the principles of natural justice by any Tribunal or other public authority which has the power to make a determination in respect of which that person's rights, obligations or interest protected or recognised by law. He contended that the respondent's decision to refuse the appellant's lump sum compensation contained an element of pre-determination based in part on the respondent's misinterpretation and understanding of s. 147 and possibly a breach of the right to an unbiased decision. However, I agree with Ms Zumbach's submission that the principles of natural justice have been observed in the review and appeal process and there has been no infringement of the appellant's rights. 11. The respondent, Mr Meffin contended, was in breach of its statutory duties under the transitional provisions, and was not acting fairly and reasonably because it did not follow up the appellant's claim as it should have done, and the respondent is therefore estopped from applying the provisions of s.147. Ms Zumbach submitted that on the authority of Black v ARCIC (District Court, Wellington, DCA 80/94, Decision No. 66/94, 31 October 1994) a Cl claim form does not constitute written application for a lump sum compensation pursuant to s. 147(1). The appellant in that case had lodged a claim with the respondent on 9 September 1992. It heard nothing from her until 29 April 1993 when the respondent received an application for entitlement to lump sum compensation amongst other things. In his decision, Judge Imrie considered s.147 and at p.17 he said as follows:- "On the basis of this summary my conclusion is that s. 147 is to be read as a whole and that s. 147(1) does not stand alone. (It is not clear why the legislature uses the phrase 'before the 1st of April 1993' in s.147(1) and the phrase 'not later than 31st day of March 1993' in s.147(2). However, that difference in phrasing does not mean that s.147(1) should be considered separately from s. 146(3). The formal provisions are that:- (1) There is no entitlement to a lump sum compensation under s.78 or 79 of the 1982 Act unless a claim in respect of personal injury by accident is lodged before 1 October 1992 - s.147(2A). (2) If a claim for personal injury by accident is lodged before 1 October 1992 the entitlement to a lump sum compensation under s.78 or 79 of the 1982 Act is preserved if the person makes a written application for 12. such lump sum compensation on or before 1 April 1993 - s. 147(1). (3) If a claim for personal injury by accident is lodged before 1 October 1992 and there is written application for lump sum compensation before 1 April 1993 the claimant may elect in written not later than 31 March 1993 to receive lump sum compensation under s.78 or s.79 of the 1982 Act or an independent allowance under the 1992 Act but not both - s.147(2). (4) Even if a claim for personal injury by accident is lodged before 1 October 1992 and there is a written application for lump sum before 1 April 1993 that person is deemed to have elected to receive an independent allowance in place of lump sum compensation unless he or she elects in writing not later than 31 March 1993 to receive his or her entitlement under s.78 or s.79 of the 1982 Act - s.147(3) Ms Zumbach submitted that the treatment expenses claim and medical certificate is a form to be used when claiming treatment expenses from the Corporation. The certificate reads:- "I certify that I treated the patient for the injuries described above." A fair reading of this form, she submitted, is that the claimant is claiming for treatment expenses, not for lump sum compensation under s. 78 or s.79 of the 1982 Act. The decision in Black was applied in Bright and Others (DCA. 149/94, 150/94, 151/94 and 192/94 - Decision 05/94, 1 December 1994) and all appeals were dismissed. 13. I agree with Ms Zumbach. A Cl claim form does not constitute written application for lump sum compensation pursuant to s.147(1). A C1 form is entitled "an advice of injury form". I accept that its purpose is to provide the respondent with details of the injured person which includes name, date of birth, occupation, and address in order to give the respondent sufficient information to establish whether their claim for personal injury by accident should be covered by the Accident Compensation Scheme. The C1 form gives no indication of the compensation or assistance required by the claimant which would vary in each individual case. The respondent is not in a position to be able to anticipate the needs of individual claimants, and it is for each individual person to notify the respondent of a compensation or assistance required. The standard Cl claim form completed by the appellant is no more than a general claim for personal injury by accident under the Act. No part of the form refers to any application for entitlements that may arise under the Act. There is no reference to lump sum compensation. The words "written application for that compensation" in s.147(1) refer to written application for s.78 and s.79 compensation. The word "that" refers to the preceding words, namely, to compensation pursuant to s.78 or s.79. The word "that" does not refer to a claim of personal injury by accident or indeed a claim for compensation generally. The first limb of s.147(1) requires that the claimant must have an entitlement pursuant to s.78 or s.79 of the Accident Compensation Act 1982. By reason of s.147(2A), no person has an entitlement unless a claim for personal injury by accident has been lodged before 1 October 1992. If that lodged claim was also treated as a "written application" for s.78 and 79 compensation, then the second limb of s. 147(1) would be redundant. 14. Ms Zumbach contended that this is implicit from the whole of s. 147. Section 147(2A) is an avoidance of doubt section that reaffirms that interpretation and puts it beyond doubt. However, not only would the second limb be redundant, it would also give rise to an internal conflict in the interpretation of s.147. If the claim for immediately by accident is one and the same as a "written application" then pursuant to the first limb, that claim/application would have to be lodged by 1 October 1992, whereas pursuant to the second limb that same claim/application could be lodged by 1 April 1993. The second limb of s.147(1) does not extend the time for filing an application for personal injury. The application must be filed by 1 October 1992. The second limb places a time limit which written application can be made for lump sum compensation to 1 April 1993 provided the first limb has been met, namely, that the application for cover has been lodged by 1 October 1992. The appellant was not altogether ignorant, in Ms Zumbach's view, of the fact that the Cl advice of injury form did not constitute a claim for all the compensation the appellant was entitled to. The respondent's file confirmed that the appellant claimed for damaged clothing and numerous other benefits, at the instigation of the appellant, and each request has been addressed' formally by the respondent. Mr Meffin had also contended that it is only when it has been determined by ACC that a person has an entitlement to a lump sum that the 15. election becomes relevant, and similarly with an entitlement to an independence allowance. Ms Zumbach submitted that in terms of s.147, entitlement to compensation under s.78 or 79 should be read, as also should references in s. 147 to entitlement to an independence allowance, as "an entitlement [to an assessment in respect of] compensation under ...". In other words, an assessment is a prerequisite to an entitlement both in terms of s.78 and 79 of the Accident Compensation Act 1982, and s.54 of the Accident Rehabilitation and Compensation Insurance Act 1992. Lump sum compensation does not exist of right and certain criteria must be met first. The intention of s.147 was clearly not required that a "right" to either lump sum compensation or an independence allowance should be established before an election could be made. Mr Meffin has contended that s.147(1) is a stand alone subsection. However, I agree with the Black decision, where Judge Imrie in considering this very issue, concluded that s. 147(1) cannot stand alone, and he examined the subsections to s. 147 and found that the subsections (1), (2), (2A) and (3) were inter-dependent. Mr Meffin expressed a concern that the appellant was not advised of the need to make a written application for s.78/79 compensation. I accept Ms Zumbach's submission that there is no requirement in the Act that the Corporation give notice, and thus the requirements of s. 147 are unaffected by the apparent lack of notice to the appellant. 16. In Shanley v ARCIC (District Court, Wellington, DCA 198/93, Decision No. 40/94, 15 July 1994) the appellant had failed to make an election in writing pursuant to s. 147(2). Judge Imrie then referred a copy of the Webster decision to the appellant and said:- "The only difference in essence between his situation and that of the appellant in Webster is that in fact no compensation was paid at all to Mr Shanley. Generally Mr Shanley accepts that the principle in the Webster decision applies to him ... The result is that it is not possible for the Corporation to make a lump sum award because of Mr Shanley's failure to make the election and the appeal must be dismissed. " In McDermott v ARCIC (District Court, Palmerston North, DCA 157/93, Decision No. 4/95, 1 February 1995) Judge Ongley stated:- "Since this review, decisions of Judge Imrie in Black (66/94) and Demus (71/94) have been issued. Those cases involved the same point as this case, that is to say whether there is any avenue for a lump sum claim under the 1982 Act to be considered where an election under the 1992 Act has not made under s.147(3), or where a written application for lump sum compensation is not made before 1 April 1993. Judge Imrie considered whether s.147(1) can stand alone as had been suggested in Shanley (40/94) ... He decided that effect must be given to s.147(3) and an election is essential to preserve entitlement. With respect, I agree with that reasoning. ... A number of cases have now been decided on appeal in this Court in circumstances where a claim for compensation was made but no written application had been made before the cut off date. In none of those cases has the appellant been able to succeed. The 1982 Act was repealed by the Accident Rehabilitation and Compensation Insurance Act 1992 and 17. claims for compensation under the former Acts cannot succeed except where they are preserved under the 1992 Act. But for the new Act coming into force, the Corporation would no doubt have processed a lump sum compensation claim under the 1982 Act without written application by the appellant. Once the new Act was enforced the appellant's rights were limited by the requirements of s. 147 and a written application and an election were required in order to preserve any entitlement to lump sum compensation." Judge Ongley took the view that the appellant was deemed to have elected to receive an independence allowance and the appeal was dismissed. In Webster V ARCIC (District Court, Rotorua, DCA 197/93. DCA 22/94, 27 May 1994) Judge Middleton considered a late election for lump sum compensation pursuant to s.147. The appellant had suffered personal injury by accident in 1985, and his claim was accepted at that time, and various amounts of compensation were paid. The file had been closed when in July 1993 the appellant applied for lump sum awards. His application was declined on the basis he had made no election. The appellant submitted that he had lived in an isolated area which did not receive mail or newspapers regularly, and this was the reason he was unaware of the requirements to make an election by 31 March 1993. Judge Middleton considered s. 147 and concluded:- "The appellant is aware that he did not make the necessary election by 31 March 1993 so that in terms of subsection (3) of s.147 he has been deemed to have elected to receive an independence allowance under s.54 of the Act. Whatever the reason for his failure to make his election the Act provides no discretion which would permit the respondent or me now to 18. make a lump sum award. The appeal must therefore be dismissed." In Ramage v ARCIC (District Court, Wellington, DCA 81/94, Decision No. 57/94, 30 September 1994) Judge Middleton again considered a failure to elect to receive a lump sum award in terms of not only s.147 but also s. 148 in respect of deterioration. The respondent was notified of the deterioration on 22 June 1993. Judge Middleton when considering s.147 said:- "As can be seen s. 147(1) of the 1992 Act covers the position of a person who has an entitlement to lump sum award under the 1972 or 1982 Acts, but has not received that compensation and who can make a written application for compensation before 1 April 1993. ... Section 147(2) of the 1992 Act covers the position of a person who has suffered personal injury by accident under either the 1972 or 1982 Acts for which he has not received payment and who would have an entitlement to an independence allowance under the 1992 Act. That person may make an election in writing before 31 March 1993 to receive either the entitlement under the 1972 or 1982 Acts or an independence allowance under the 1992 Act, but not both. ... The legislation seems to me to be quite clear that it is the only course open to the appellant because he failed to make the necessary written application before 1 April 1993. His application for re-assessment was made on 22 June 1993 so that he is not, therefore, eligible for a further lump sum payment." With regard to the matter of estoppel raised by Mr Meffin, Ms Zumbach referred to Wade, Administrative Law, 5th ED. which provides at p.233:- 19. "In public law the most obvious limitation on the doctrine of estoppel is that it cannot be invoked so as to give an authority powers which it does not in law possess. In other words, no estoppel can legitimate an action which is ultra vires." The principle was recognised by Mr Cartwright as the Accident Compensation Appeal Authority in Kerk v Liet (369/92) at p.10 where he said:- "In my view the doctrine of estoppel cannot be invoked to give the respondent powers it does not possess." Ms Zumbach submitted that the respondent's interpretation and application of s.147 is entirely lawful, and supported by numerous District Court decisions. I agree that an estoppel cannot operate. Mr Meffin referred to King v ACC [1994] NZAR 159 in which it was held that had the plaintiff's right in that case to a s.60 assessment been established prior to 1 July 1992, then by virtue of sections 138, 139 and 141(1) of the 1992 Act, the plaintiff would not be subject to the provisions of s.49 and 51 of the 1992 Act. Ms Zumbach contended that although not explicitly recognising the fact, that case implicitly recognised that s. 135(4) is made "subject to this part of this Act". Section 147 of the ARCIC Act is a specific provision, but in its context, Ms Zumbach submitted it is apparent that it is specific to transitional claimants to whom s. 135(3) and (4) apply; namely, those who bring a "claim ... in respect of personal injury by accident" before 1 October 992, and have suffered personal injury by accident before 1 July 1992. These claimants shall have their claims determined under the 1982 Act, but "subject to this part of this Act"; that is, subject to s. 147. 20. Mr Meffin further submitted that s.20(e)(iii) of the Acts Interpretation Act also applies in respect of my interpretation of s. 147. He argues that the appellant had a "right" to lump sum compensation which had "acquired, accrued, or established". Further, that this 'right' could not be overruled and sections 135 and 147 must be interpreted in favour of the appellant. In respect of s.135, the Court of Appeal in Childs v Hillock [1993] NZAR 97 said at p. 101:- "It is not a section creating rights but rather one that ameliorates the consequences of the change from a more generous to a less generous compensation scheme. Under the new Act certain eventualities occurring after 1 July 1992 are no longer covered. The earlier Acts have been repealed as at 1 July 1992. Unclaimed cover under those Acts in respect of those eventualities would come to an end unless preserved. Subsection (5) [sic] preserves them for three months. If the opportunity is not taken to lodge a claim, then cover is lost." I agree with Ms Zumbach's submission:- "Thus the opportunity for cover under the 1982 Act is not lost for those not lodging a claim before 1 October 1992. Necessarily, if the opportunity for cover is lost so is the opportunity for the entitlement such as lump sum compensation. On the other hand, those who lodge a claim before 1 October 1992 have a s.135(3) and (4) for electing lump sum compensation provided for by s.147." Moreover, as Ms Zumbach has pointed out it remains to be established that the appellant has a "right" to the compensation. 21. Conclusion: A Cl claim form does not constitute written application for lump sum compensation pursuant to s. 147(1). Under the 1992 Act, the entitlement to lump sum compensation arises pursuant to sections 135 and 147 of that Act. Section 147(1) requires that the claimant lodge an application for cover by 1 October 1992 (this being the pre-condition to entitlement) and that person makes a written application for section 79 compensation before 1 April 1993. The Cl form is not a written application for section 79 compensation. There is no requirement in the Act that the Corporation give notice of the need to make an application in writing for section 78/79 compensation. No written application for section 79 was made by the due date. Accordingly, the appellant has no entitlement to compensation pursuant to section 79, although the appellant will have an entitlement to the independence allowance if the relevant requirements of the 1992 Act are met. The appeal is dismissed. (Jane H. Lovell-Smith) District Court Judge