Weastell v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 203 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN RICHARD STANLEY WEASTELL of Temuka Appellant (Appeal No. DCA 102/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from Mr J M Miller, counsel for the appellant and from Mr A D Barnett, counsel for the respondent, with a request that I issue a decision on the papers. The issue on the appeal is whether the appellant was entitled to make an application for a review of the respondent's primary decision after the expiration of three months from the notification of the decision in respect of which the review is sought. The facts which gave rise to the appeal are that the appellant lodged a claim with the respondent on 6 December 1996 stating that he had suffered an umbilical hernia in the course of his work as a Slaughterman at the Smithfield Freezing Works. The date of the injury was stated to be 19 November 1996. The respondent referred the appellant to a specialist whose report was that he did not consider there was a link between the hernia injury and the incident in the freezing works, as a result of which the respondent declined the appellant's application for cover on 29 November 1996. The notification of that decision to the appellant advised him that if he wished to 2 apply for a review of that decision, it had to be made within the period of three months. On 30 June 1997 an advocate, on behalf of the appellant, notified the respondent that the appellant wished to apply for an out of time review hearing of the decision of 29 November 1996. The advocate made submissions in support of that application based on the requirements for an application for leave to apply for an out of time review under the Accident Compensation Act 1982. In doing so, the application noted that at the time the appellant received the respondent's decision he was living with his wife who was then dying from cancer as a result of which he was heavily involved with her care and overlooked the need to apply for the review. The advocate also submitted that pursuant to section 67A the respondent, had the power to amend its earlier decision, which would have given the appellant the opportunity to then apply for a review. The respondent notified the appellant on 8 September 1997 that it would not ament its original decision. The appellant applied for a review of that decision. At the review hearing the appellant's advocate again endeavoured to argue that pursuant to section 67A the respondent was permitted to have the appellant's application for review heard. In his decision the Review Officer referred to the requirements of section 89(5) and the decisions of the Court in Zehnder (73/95) and Swann (46/97) in which it had been held that there is no provision in the Act which enables the respondent to accept an application for review outside the three month time limit. It is against that decision which the appellant now appeals. In support of the appeal Mr Miller has submitted that the wording of section 89(5) is not mandatory as it includes the word "may". He submitted that it is therefore not an inflexible provision and that applications could be made or accepted outside the three month period. He submitted that because of this appellant's need to assist his dying wife he had neglected to file his application within the three month and it would lead to an injustice if the application was not granted. Mr Barnett submitted that section 89(5) does not provide any discretion and that the use of the word "may" is made in the "facultative sense" meaning that a claimant is entitled to lodge a review application within three months. The issue falls securely on section 89(5) which provides: "An application pursuant to this section- (a) May be made in the prescribed form within 3 months after the date on which the claimant is entitled to treat the claim in respect of which the review is sought as having been rejected under section 66 of this Act; and (b) In any case, an application in the prescribed form may be made within 3 months after the date on which notice in writing has been given of the decision in respect of which the review is sought 3 and each such application shall state the grounds on which the application is made." The Court has held in Zehnder and Swann and a number of other decisions that the wording of the section does not provide a discretion which would permit the filing of an application beyond the three month time limit. I take the section to mean that an applicant who is dissatisfied with a decision of the respondent may file an application for review within three months after the notification of the rejection of his claim and that the applicant may not file an application for review after that time. As I mentioned in Zehnder section 89(5) of the Accident Rehabilitation and Compensation Insurance Act 1992 is in direct contrast to section 101(2) of the Accident Compensation Act 1982 which provided that an application for review "shall be made in writing within one month after the date on which notice in writing has been given of the decision in respect of which review is sought or within such extended time as the Corporation may allow on application made either before or after the expiration of that month." The 1982 provision did provide a discretion to accept a late application while section 89(5) clearly does not. Accordingly the appeal is dismissed. As Mr Miller anticipated that I would not be persuaded to go past the decisions in Zehnder and Swan, he requested leave to appeal to the High Court on this issue. As the matter has not been tested in the High Court and does involve a question of law, leave to appeal to the High Court is therefore granted to the appellant. DATED at WELLINGTON this 15 m day of September 1998 A W Middleton District Court Judge dc102-98.doc (nr)