RT v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WHANGAREI Decision No. 143 / 96 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN RT of Hikurangi Appellant (Appeal No. DCA 128/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 24th day of October 1996 APPEARANCES Miss C L Cook for appellant Ms G S Hancock for respondent DECISION OF JUDGE A W MIDDLETON There will be an order that no details of this decision which will lead to the identity of the appellant are to be published. The issue in this appeal is whether the appellant is eligible for lump sum compensation pursuant to section 147 of the Accident Rehabilitation and Compensation Insurance Act 1992. 2 On 4 May 1993 the appellant lodged a claim with the respondent for cover of treatment expenses in relation to a "sensitive issue". The appellant subsequently provided details of the alleged abuse which had been outlined in a probation report prepared for the District Court and dated 18 June 1991. On 17 August 1993 the respondent advised the appellant that her claim had been accepted. A file note indicates that the appellant had telephoned the respondent's office stating that she had lodged a claim in 1992. The respondent requested the appellant to confirm these details by way of affidavit and to provide a medical certificate. As nothing further was heard the file was closed in June 1994. On 25 July 1994 the appellant's solicitor advised the respondent that she had been consulted by the appellant and requested information regarding the claim. The respondent reported that the file had been closed and the solicitor subsequently replied that the appellant intended to pursue her claim but that she had been in a drug rehabilitation programme for a period of time during which communication had been difficult. The solicitor requested information as to the status of the appellant's claim for lump sum compensation. On 28 September 1994 the respondent advised the appellant's solicitor that lump sum compensation was declined because the appellant had not lodged a claim by 1 October 1992 nor had she made a written election for a lump sum award by 31 March 1993. The appellant applied for a review of that decision. At the review hearing the appellant submitted a copy of an affidavit sworn on 30 March 1993 on which there appears to be a date stamp 30 March 1993. In that affidavit the appellant deposed that sometime in June 1992 she had called at the office of the respondent after the 5.00 pm closing time and had placed her application for a lump sum award under the door in anticipation that it would be processed the next morning. She further deposed that on 16 January 1992 she had given birth to her son who was then 24 weeks premature. She recalled that at the time she delivered her application to the respondent's office she was under a great deal of stress because of the premature birth of her baby which suffered respiratory problems. She stated that it was for that reason that after leaving her application at the respondent's office she had been more concerned with the situation of her child rather than to follow up her application. At the hearing of the appeal the appellant gave evidence that in company with her partner sometime in June 1992 she had placed her application for cover and lump sum awards under the door of the respondent's premises. Her partner also gave evidence in which he confirmed that he and the appellant had been living together for 16 years. He said that he had also given evidence at the review hearing and confirmed the context of that. He said that on the day of the hearing he had searched the cupboard at their home in which they had kept all their papers because he also had some claims with the respondent. He said that it was during that search that he found a copy of the appellant's affidavit sworn on 30 March 1993 which is the subject of a date stamp marked '30 March 1993' and also on the back has another date stamp of '2 April 1993' and the words "Criminal Injury Unit". He said that following the review hearing he made a further and more intensive search of the cupboard and 3 then found a copy of an election form for lump sum compensation which was produced to me as exhibit 1 and is now on the Court files. On that election form appears the date 30 March 1993 and carried what appears to be the same date stamp as appeared on the appellant's copy of affidavit of 30 March 1993 together with the same date stamp showing '2 April 1993' "Criminal Injury Unit" together with a further date stamp which shows that the election form was received by the respondent's Registration Centre at Auckland on 1 April 1993. The appellant's partner was unable to explain how the papers came to be in their possession and has no recollection by what method they acquired them. He told me that with his own dealings with the respondent they kept all their papers together in the cupboard without their being in any particular order. While neither party could remember the exact date on which the documents were lodged with the respondent's office at Whangarei, the appellant's partner, in answer to my question, said that he was aware that the child had been born in January 1992 and that it came home at the beginning of May 1992 and that it was not long after that that he and the appellant lodged the documents in the respondent's Whangarei office by placing them under the then closed door. The appellant's partner was adamant that the documents which had been produced to the Review Officer and to the Court were the documents which they had placed under the door of the respondent's office. He also said that at the time the documents were placed under the door there were other documents on the floor inside the door and that he had assumed that they would all be uplifted the next morning when the office was open. Ms Cook submitted: 1. That on the basis of the evidence of the appellant and her partner it was established that the documents had been lodged with the respondent by placing them under its door in June 1992. 2 . That while section 135 of the 1992 Act requires that the documents had been sufficiently lodged to comply with the requirements of the section. Ms Hancock submitted: 1. That the Review Officer had only the evidence of the appellant and her partner and the copy of the affidavit of 30 March 1993 available to him and on the basis of that evidence and the statements of the appellant and her partner considered that the evidence was not sufficiently strong to persuade him that the appellant had complied with the requirements of the Act. 2. The requirements of "lodging with the Corporation required more than merely leaving the document in the Corporation's office." 3. That it has been well established that the failure to provide a written application of election within the appropriate time is fatal to a claim for entitlement. 4 4. That to accept a claim for cover constitutes a written application conflicts with the proper interpretation of section 147. I have considered the appellant's affidavit the contents of which I consider to be sufficient to constitute a claim for both cover and a lump sum award. Both the appellant and her partner are adamant that the documents were lodged in June 1992 and are unable to answer the question as to how the affidavit and the election form which have clearly been in the possession of the respondent came to be returned to them. I consider that on the balance of probabilities it must be accepted that they did . lodge the documents by placing them under the respondent's door in June 1992 at a time when there were other papers in the same position and that somehow they have been misplaced by the respondent and subsequently returned to the appellant. It is quite clear that they have been date stamped in March 1993 by the respondent's office from which it must appear that they were in its possession then and have subsequently been returned. It may be that they were placed on an incorrect file and on being discovered were returned to the appellant although there appears to be no correspondence regarding this. However, I consider that in the interests of justice it must be accepted that the appellant and her partner did lodge the documents with the respondent and they have somehow been misplaced by the respondent. The appellant is therefore entitled to cover and to consideration of a lump sum award. The appeal is allowed and there will be costs of $800. DATED at WELLINGTON this 29th day of November 1996 Guniadila A W Middleton District Court Judge dc128-95.doc (nr)