Campbell v Accident Rehabilitation and Compensation Insurance Corporation

ARCIC IN THE DISTRICT COURT Decision No. 174 197 HELD AT WELLINGTON 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 R CAMPBELL (FORMERLY MAHER Appellant (Appeal No. DCA 377/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the Ist day of August 1997 APPEARANCES E D Peters for appellant S R Condie for respondent S K Mitchell for the employer DECISION OF JUDGE D A ONGLEY The parties are agreed that the issues in this appeal should be referred back for further consideration by a Review Officer. They are agreed that costs should be reserved, but there is no agreement concerning the disposition of the present appeal. Either it should be allowed and the Review Officer's decision revoked, or it should be allowed without revoking the Review Officer's decision but referring the questions for further consideration. In the first case, the appellant would have cover restored in accordance with the original decision of the Corporation, but in the second case, the appellant's claim for cover would remain revoked, as it was, by the Review Officer's decision which was given on 6 September 1996. - 2- If the Review Officer's decision is revoked, the consequences for the employer will be that it is liable for experience rated premium loading in connection with the costs of the claim for a work-related injury. It is possible that the review decision will be completed before premium loading becomes effective, but that is not known and the employer wishes to avoid an unnecessary payment. Such a payment would probably be refundable to the employer if the appellant was eventually refused cover. The Corporation's concern is that if the Review Officer's decision is revoked then the claimant will be entitled to a back-payment from 6 December 1996. Then, if the Review Officer rejects the claim for cover, the Corporation may have difficulty recovering an overpayment. That is all subject to the outcome of the exercise of any further rights of appeal. The interest of the appellant is that she is without compensation since the Review Officer's decision, and she would like to continue receiving compensation until the matter is determined. To some extent, the argument turns on the merits of the appeal. The appeal has not been fully argued because counsel have agreed that further evidence needs to be heard. The issue on the appeal concerned a failure to hear the appellant at the review hearing conducted on 27 November 1996. Possibly none of the parties is solely responsible for that. The appellant alleges, and that has not been determined, that she was mis-led by Corporation staff into believing that her interests would be protected by the Corporation. That question of fact cannot be decided without hearing the whole appeal so it has to be put to one side. Surprisingly, there was no appearance by the Corporation on the hearing of the review. The Corporation's file had attached to it a form signed by the present appellant agreeing to the hearing of the review and notifying that she would not attend. Her failure to attend was not accidental, but it may have been excusable. The review application referred to grounds that the claim was made without any report to the employer about any accident, that the employee suffered an occupational overuse injury before she commenced employment, and that the Corporation had failed to obtain any information from the employer before accepting the claim for cover. It is evident that the meaning of the application for review was that the appellant did not tell the employer that she had the overuse problems until after they developed in the course of the job. The appellant had written the answer "Nil" in answer to a question on her application for employment form. The question stated "Do you have any medical condition or disability which could impact on your ability to perform the role which you have applied for? If yes, please provide details. If no, enter 'Nil'". Under s 7(6) of the Accident Rehabilitation and Compensation Insurance Act 1992, if such an answer was given when the prospective employee knew it to be untrue, no cover will be available for a gradual process injury. The Review Officer decided the matter on that ground in favour of the employer. The review was procedurally correct and the Review Officer made no glaring error in weighing the evidence or applying the correct provisions of the Act. Counsel for the employer submitted that this appeal was set down for hearing and it would have been heard but for an application by the appellant to have the matter referred back to the Review Officer. Counsel for the employer did not consent to that application unconditionally, but consented only on the conditions that costs would be reserved, that the present decision would remain in force, and that the employer would still be able to argue the question of s 7(6). That qualified consent was given several days before the date set for the hearing of the appeal, and the appellant's - 3 - objection to the conditions was notified so late that the appeal could not be argued for practical purposes. The employer submits that the status quo should be retained pending the resumption of the review hearing, and submits that the balance of convenience is favoured by leaving the review decision in force. The employer submits also that the Court has no power to revive the Corporation's original decision, and even if there is power, the Court should not revoke the Review Officer's decision because the appeal has not been argued and there is no agreement amongst all the parties for the appeal to be allowed. Regulation 16 of the Appeals Regulations states: 16. Powers of court hearing appeal - (1) In the determination of any appeal, a Court may confirm, modify, or revoke the decision appealed against or dismiss the appeal. (2) Notwithstanding subclause (1) of this regulation, the Court may remit to the person who heard the review, for further consideration and determination by that person, the whole or any part of the matter to which the appeal relates. (3) In remitting any matter to the person who heard the review under this regulation, the Court shall - (a) Advise that person of its reasons for so doing; and b) Give to that person such direction as it thinks just as to any rehearing or to the reconsideration or determination of the whole or any part of the matter that is so referred. ..... The question has been raised, but not fully argued, as to whether reg 16(2) entitles the Court to remit the question to the Review Officer without determining the appeal. If so, it would follow that the original decision remains in force. Of course, in this case, the issues would be remitted to the Review Officer to deal with by way of rehearing. The existing decision must either be set aside, or some authority must be found for setting it aside if the rehearing reaches another result. It may have been appropriate to consider suitable conditions for setting aside the existing review decision. The present difficulty would probably be overcome if the appellant was able to provide security for refund of payments. No such offer has been made and no conditions have been agreed or suggested. It was also suggested in argument that the appeal could remain on foot and could be resumed if necessary after a final determination by the Review Officer. Such an interpretation of the Appeals Regulations would produce an unusual result. When an order is made for a Tribunal to rehear a proceeding, it is customary for the appeal to be allowed and so be determined. I consider that reg 16(2) envisages that the appeal comes to an end on the basis that the appeal is allowed and the issues are remitted to the Review Officer. In making such an order, the Court may at the same time consider making orders under reg 16(1) to either modify or revoke the decision appealed against. Of course it would not be possible to confirm the decision, except to the extent of allowing it to remain in force until the rehearing. Regulation 16(2) applies notwithstanding subclause (1) which indicates that it can be invoked either on its own or together with an order made under subclause (1). - 4- Counsel for the appellant submits that the review decision should not stand because it was reached on inadequate evidence. The appellant submits that there is no prejudice to the Corporation because the Corporation has powers to recover money paid to the appellant if the claim for cover is revoked. The position would then be no different except in terms of quantum than it was before the review decision was given. The Corporation had already made payments that might later prove to be recoverable. Counsel for the Corporation submitted that the status quo should be preserved, that is to say the present decision of the Review Officer, there being no finding of any wrong procedure or error or law. The appellant submits that the status quo should be regarded as the position before the review decision when the proceeding commenced without the appellant present. The appellant's position is that the intervening process has been carried out in error or without due consideration of the rights of the appellant, and that the appellant's rights to payments should be reinstated until a proper hearing and determination of the review.' The effect of the decisions as they have occurred from time to time is defined by s 79 of the Act which is as follows: 79. Effect of decisions of corporation - (1) Every decision of the Corporation shall continue to be of full effect notwithstanding that any review or appeal or other proceeding may have been commenced in respect of that decision. (2) No obligation to pay any premium or right to receive or recover any premium shall be suspended because any review or appeal or other proceeding may have been commenced in respect of that premium. (3) No decision of any Court on any matter arising under this Act shall be implemented until any appeal under this Act has been determined or the period for lodging an appeal under this Act has expired and no appeal has been lodged. Under s 79(2) the Corporation is obliged to continue to make payments and the employer is obliged to pay premiums notwithstanding that there is a review or appeal pending. Although the review proceeding is not the same as ordinary civil litigation, similar principles should be applied. The appellant is a supplicant who is seeking a rehearing because she failed to appear when proper notice had been given of a review hearing which would determine her rights to compensation for a work injury. It has not been established that the Corporation was at fault, and it does not follow that the Corporation should be required to carry the burden of payments that it might have difficulty recovering if cover is eventually declined. The period of time from now until the completion of a review hearing should not be too long. Counsel have mentioned that, now the issues are being properly addressed, it will be necessary to obtain further medical information. That is likely to be the main reason for any further delay. There is no evidence before the Court of prejudice to the appellant that would cause manifest injustice. There is no obvious error on the part of the Review Officer which would require the decision to be revoked. The reason for referring the matter back to the Review Officer is only because it is the most suitable and convenient venue for all the - 5 - evidence to be re-heard. Another possibility would be for all the evidence to be heard in this Court, which would be an exceptional procedure. If evidence had been heard in this Court, the review decision would remain in force until completion of the appeal hearing The purpose of referring the matter back is mainly for convenience and to enable all parties to have a further right of appeal if that should be necessary once the issues of fact have been determined. In those circumstances, I consider the better course is to leave the review decision in force. I reject the appellant's submission that such an order cannot be made. Finally, it does appear that if the appellant had wanted the questions to be considered de novo in this Court, almost the same position would have been reached, because the case would probably not have been ready for a final determination of any questions of fact which would involve further cross-examination of a witness and the receiving of further medical information. It would probably have had to be adjourned and the Review Officer's decision would then have remained in force. Counsel have discussed whether the matter should be referred back to the same Review Officer. That is the normal course which is contemplated by reg 16 of the Appeals Regulations. Counsel are agreed that the Review Officer has made no findings of credibility which might introduce an element of pre-judgement. The Review Officer has only drawn inferences from facts in evidence that were not contested at the hearing. He could not reasonably be considered to have formed any views that would prejudice a fair rehearing. Finally, counsel have discussed whether directions should be given. In view of the need for further medical reports, a timetable cannot be established. The Court will be functus officio once the appeal is allowed. It will be sufficient to direct that the Review Officer should endeavour to hear the review as soon as possible. A further direction is given that the Review Officer should convene with the parties to endeavour to resolve any preliminary matters if there is any difficulty in obtaining medical or other specialist information required for the review hearing. The only remaining matter is the question of costs. The Corporation has submitted that the costs should lie as they fall. The appellant and the employer are agreed that costs should be reserved. Costs are reserved so that, if necessary, I will consider the questions of costs separately following the outcome of the review hearing and any appeal therefrom. The appeal is allowed. No order is made revoking the Review Officer's decision. The Review Officer will further consider and determine all questions arising on the original application for review to the intent that the original review decision will stand until the matter is re-heard and the Review Officer makes a further determination of the issues on review. DATED at WELLINGTON this JITH day of AUGUST . 1997 D A Ongley District Court Judge