Adam v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 88 / 97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN ROBERT JAMES ADAM of Henderson, Auckland Appellant (Appeal No. DCA 315/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 7th day of April 1997 APPEARANCES Appellant in person T P Cleary for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant is entitled to a backdating of his independence allowance. The appellant suffered a comminuted fracture of the right humerus on 20 March 1995. He lodged a claim with the respondent on 28 March 1995. He spent some time in hospital. The respondent paid weekly compensation and a contribution towards 2 home help. On 25 March 1996 the appellant applied for assessment for an independence allowance. This assessment was carried out on 12 April 1996 and on 9 May 1996 the respondent advised the appellant that he would receive an independence allowance as from 12 April 1996. On 13 May 1996 the appellant requested a backdate of the independence allowance to 20 June 1995. The respondent advised the appellant that it could not backdate the independence allowance. The appellant applied for a review of that decision which was declined. The appellant submitted that he now had a serious disability which would be with him for life. He said that he had not previously applied for the independence allowance because at no time had he been advised as to his entitlement. He indicated that his Case Manager had told him prior to making the application that it would be backdated. He said that as he had been unaware of the entitlement he had been placed on an unemployment benefit for some three months until the respondent realised that that was incorrect. The appellant submitted that he had not received any documentation from the respondent which detailed possible entitlements and that he was still in hospital when he had been put on the unemployment benefit. Mr Cleary submitted that the provisions of section 54(5) and (6) of the Act are quite clear. They state: "54. Independence allowance--- (5) The Corporation shall not pay any independence allowance unless the assessment of the degree of disability of the person in respect of whom it is to be paid has been made in accordance with--- (a) Scales prescribed under this Act which maybe based on impairment or disability or a combination of impairment and disability; or (6 ) In the absence of the scales referred to in paragraph (a) of this subsection, the American Medical Association Guides to the Evaluation of Permanent Impairment (Second Edition)--- and any such allowance shall be payable from the date of the assessment or the date determined under subsection (2) of this section, whichever is the later. (6) Notwithstanding anything in subsection (5) of this section, if the assessment has not been made within 13 weeks after the date on which the personal injury causing that disability was suffered, but the Corporation is satisfied that--- (a) The assessment has not been completed (whether or not it has been commenced) for reasons beyond the control or responsibility of the injured person; and (b ) If the assessment had been completed the degree of disability of the injury would have entitled the person to an independence allowance--- the Corporation shall pay an independence allowance as if the injured person's degree of disability had been assessed at a percentage estimated by the Corporation." In addition, section 63(4) requires that the respondent shall not make any payment in respect of an allowance unless it has received an itemised written application. 3 Mr Cleary submitted that an independence allowance becomes payable from the date of assessment of the allowance or the date of 13 weeks after the time on which the injury occurred, whichever is the later (emphasis added). The Court has held in numerous appeals in relation to this issue that there is no discretion to backdate the commencement of the payment of the allowance beyond the time prescribed by section 54(5). While the appellant claims that he was not aware of the requirements of the section and had relied on the assistance of his Case Manager, the Court has held in a number of cases that there is no obligation on the respondent to make applicants aware of their possible entitlements other than by the general announcements which it makes from time to time. Furthermore, the respondent cannot be bound by any assurances which the Case Manager may have given. I consider that the decision of the Review Officer was correct and followed with the requirements of the Act. The appeal must be dismissed. DATED at WELLINGTON this 2 day of May 1997 A W Middleton District Court Judge dc315-96.doc (nr)