Morrison v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT DUNEDIN Decision No. 62195 UNDER the Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act 90/ 94/ 0428 BETWEEN RAYMOND DOUGLAS MORRISON of Dunedin Appellant (DCA 219/94 ) AND THE ACCIDENT REHABILITATION COMPENSATION AND INSURANCE CORPORATION Respondent HEARD on the 15th day of May 1995 APPEARANCES P J Sara for appellant P Zumbach for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the appellant's claim to entitlement to a lump sum award under s.119 of the Accident Compensation Act 1992 on the ground that since the original award was made he has suffered deterioration. 2 There is no dispute as to the facts which give rise to the claim. The appellant suffered personal injury by accident on 28 March 1976 as a result of a motor vehicle accident. He received awards under both sections 119 and 120 of the 1972 Act. As a result of submissions made by the appellant's then solicitors and a reassessment by Mr Bishara, professor of neurosurgery, the respondent reviewed the award under s.119 on the basis of an assessment of disability of 20%. Payment was made on 14 October 1991. Subsequently, in the course of a report in relation to another claim for personal injury made by the appellant his then surgeon Mr McMillan advised the respondent on 7 February 1994 that he considered the appellant had suffered further deterioration of the injuries sustained in the 1976 accident which warranted further investigation. When the respondent received Mr Mcmillan's report it advised the appellant on 7 February 1994 that he was entitled to receive either a lump sum or an independence allowance and provided him with the necessary application form which the appellant completed and which the respondent accepted as a claim for a lump sum award for deterioration. On 14 April 1994 the respondent advised the appellant that: "With regard to your request for further lump sum compensation as a result of your accident on 28 March 1976, I can advise that the time limit for lump sum elections has now expired. You may however be entitled to an independence allowance." The appellant applied for a review of the respondent's decision and the Review Officer held that the claim fell within the ambit of s.148(3) of the Accident Rehabilitation and Compensation Insurance Act 1992 and that the respondent's decision should be upheld. Mr Sara submitted that the appellant was entitled to a lump sum award under s.147 of the 1992 Act which states: '(1) Where any person had an entitlement to compensation under section 119 or section 120 of the Accident Compensation Act 1972 ... but has not received that compensation and makes written application for that compensation before the Ist 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. (2) Where any person has suffered personal injury by accident to which the Accident Compensation Act 1972 applies, and --- 3 ( 1 ) That person has an entitlement to compensation under section 199 or section 120 of the Accident Compensation Act 1972 ... in respect of that personal injury, but has not received any payment under any of those sections in respect of that personal injury; and (6) 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 an independence allowance under and subject to the conditions of this Act, but not both. (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 1982; and No payment is made under subsection (1) of this section; and (c) No election is made under subsection (2) of this section --- the person shall be deemed to have elected to receive an independence allowance under and subject to the conditions of section 54 of this Act as if the personal injury by accident was personal injury that had been suffered on the Ist day of July 1992." (emphasis added) Mr Sara submitted: (a) That the appellant was entitled to an award under s.119 of the 1972 Act. (b) That he had not received the compensation: that he had made written application for an award under s.119 and that an original assessment and payment had been made followed by two subsequent awards as a result of deterioration. (c) That the first written application qualified as the required written application under s.147(1). (d) That neither s.147(2) or s. 147(3) apply to this appellant because the conditions precedent for that entitlement are: (i) That a person has suffered personal injury by accident to which the Accident Compensation Act 1972 applies; and (ii) The person has an entitlement to compensation under s.119; and (iii) Has not received any payment under that section in respect of that personal injury; and (iv) That person would have an entitlement to an independence allowance if the injury had been suffered on 1 July 1992. (e) That the appellant does not come within s. 147(2)(a) because he has already received a payment under s.119 (emphasis mine). (f) That a person is deemed to have elected to receive an independence allowance if: i) No payment has been made under s.119; and (ii) No payment is made under s. 147(1); and (ifi) No election is made under s. 147(2). (8) That all the subsections of s.147(3) are cumulative and all must be satisfied. (h) That it therefore follows that if a payment has been made under s.119 that person shall not be deemed to have elected an independence allowance. Ms Zumbach submitted that, in addition to s.147, regard must be had to s.148 which reads: "(1) Except as provided in subsections (2) and (3) of this section, where any person has received any payment under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982, that person shall not be entitled to any independence allowance under this Act in respect of that personal injury. (2) Where any person to whom subsection (1) of this section applies has already received compensation for personal injury by accident under section 119 or section 120 of the Accident Compensation Act 1972 ... between the 30th day of June 1991 and the Ist day of July 1992 (both days exclusive), that person shall be entitled to refund all such payments received to the Corporation not later than the Ist day of April 1993 and receive an independence allowance in respect of that personal injury by accident under and subject to the conditions of this Act payable from the date on which the assessment for the independence allowance was made or the refund was paid, whichever is the later. (3) Notwithstanding subsection (1) of this section, any person who suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 ... before the Ist day of July 1992, and who has since the Ist day of July 1992 suffered an increased degree of permanent loss or impairment of bodily function resulting from that personal injury by accident, may apply for an independence allowance under and subject to the conditions of section 54 of this Act, but any such independence allowance 5 shall be calculated by deducting from any degree of disability assessed under that section any percentage permanent loss or impairment of bodily function in respect of that personal injury by accident in respect of which a payment has been made under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982." (Ms Zumbach's emphasis). Ms Zumbach submitted: (a) That a similar issue was considered by the Court in Ramage v ARCIC (57/94) when the Court upheld the respondent's decision that that appellant, who had already received lump sum awards under ss.78 and 79 of the 1982 Act had notified the respondent in June 1993 of deterioration in his condition but was not entitled to a further lump sum award because he had failed to notify the respondent of his claim by 31 March 1993. (b) That the provisions of s.147 and their application had been considered in a number of cases; Webster v ARCIC (22/94); Black v ARCIC (80/94); Shanly v ARCIC (40/94); Hussaine v ARCIC (100/94) and McDermott v ARCIC (4/95). (c) That the 1992 Act repealed both the 1972 and 1982 Acts as from 1 July 1992 apart from some transitional provisions including ss.147 and 148 which provide the basis upon which applicants with entitlements to lump sum awards under the old Acts are to be settled for an interim period because there is no entitlement to lump sum awards under the 1992 Act, but only an independence allowance. (d) That this appellant comes within the criteria of s.148(3) in that he is a person who has suffered personal injury by accident within the meaning of the 1972 Act before 1 July 1992 and has, since 1 July 1994 suffered a deterioration in his condition, he may apply for an independence allowance to the extent that he has not already been compensated for his permanent impairment in terms of the 1972 Act. (e) That s.148(3) must be read in context and must be reconcilable with s.147: that it cannot have been the legislative intent to allow lump sum payments under the old Acts to be available indefinitely in respect of deterioration of permanent impairment only: that the same instructions and limitations as are imposed by s.147 in respect of any lump sum must apply in respect of lump sums for deterioration: that is, an applicant must make a written application by 1 April 1992 or elect to receive lump sum compensation before 31 March 1992. While Mr Sara has produced an attractive argument in support of the appeal, I consider that ss.147 and 148 cannot be read in isolation and that between them they provide the formulae to cover the interim period between the ability to claim 6 lump sum awards under the 1972 and 1982 Acts and the new regime of independence allowances contemplated by the 1992 Act. It is clear that the first intimation of the appellant's deterioration came in Mr McMillan's report of 17 December 1993. Accordingly I consider that s.148(3) was specifically inserted in the legislation to cover this position. I agree with Ms Zumbach's submission that the legislature, in making provision for the removal of lump sum awards, would not contemplate the possibility that further deterioration suffered by a person who had received a lump sum award under the old Acts would lead to subsequent entitlement to lump sum awards ad infinitum. I agree with Ms Zumbach that the facts of this appeal are identical to those in Ramage and that the findings in that case are equally applicable here. The appeal is dismissed. DATED at WELLINGTON this 29 day of may 1995 A W Middleton District Court Judge DC219-94.doc(19)