Kilsby v Accident Rehabilitation and Compensation Insurance Corporation

Decision No 197 / 99 IN THE DISTRICT COURT DCA 20/99 HELD AT AUCKLAND BETWEEN RUSSELL GODFREY KILSBY Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION Respondent Date of Hearing: 21 June 1999 -.-. .- Date of Judgment: 20 July 1999 Counsel: Appellant in person RESERVED JUDGMENT OF JUDGE JEREMY P DOOGUE [AUCK_DC_10\VOL1\GROUPS\JUDICIAL\DOOGUEJP\DECISION\Kilsby v ACC.doc sb] 2. The Appellant injured his back in an accident 6 September 1992. He was subsequently granted cover under the Act. He continued working but on 28 April 1993 an Orthopaedic Surgeon diagnosed him as having a lumbo-sacral disc prolapse and he was certified as being unfit to work on or about 28 April 1993. He received ACC payments from May 1993. On 20 August 1993 the Surgeon certified that the Appellant would be fit to resume normal work on 20 September 1993. The Appellant indeed returned to work and continued until 16 December 1993. I note that the Orthopaedic Surgeon's certificate did not in any way limit the sort of work that the Appellant would be able to perform. On the face of it, it certifies him as fit to return to his usual work. Unfortunately Mr Kilsby's medical situation deteriorated. He was obliged to cease work on 16 December 1993 and not long after his doctor certified him as being unfit for work. The unfitness for work arose out of the same injury. There is no evidence that there ever was a second or subsequent injury. The sequence of events had an unfortunate consequence for Mr Kilsby. In effect when he went off work on the first occasion he received 80% of his income. That income was calculated as his average earnings for the preceding 52 weeks so he received 80% of his pre-accident income. After he had to stop work a second time the Corporation assessed his income in a way which resulted in a substantial reduction. That is because when calculating his 3. income on this occasion they took into account the 52 weeks immediately preceding the period when he stopped work for the second time. Obviously that covered a substantial period of time between when he had been injured and when he had resumed work. Therefore there was factored into the calculation of his average income for the 52 weeks preceding the second cessation of work, a period when he was only receiving ACC payments. In effect, for those periods his income was assessed as being 80% of the 80% of his original income. Mr Kilsby perceived that to be an injustice. There is much to be said for his point of view. He brought review proceedings before the Review Officer who gave a decision on 20 May 1994. Mr Kilsby was represented by a solicitor at that hearing and for a period after the hearing. Unfortunately the Review Officer confirmed the Department's approach. In his decision the Review Officer, in summary, focused on the requirement in s 40 of the Act that the calculation of earnings is "one fifty second of the earnings of that person as an employee during the 52 weeks immediately before the commencement of the incapacity" (emphasis added). The wording of the Act therefore required the Corporation to have regard not from the period of 52 weeks prior to the injury and instead directed attention to the period of 52 weeks prior to the incapacity. The relevant incapacity was the one which gave rise to the claim for compensation. The incapacity with which the Corporation was concerned was the second incapacity. The Respondent was entitled, the Review Officer concluded, and indeed compelled, to assess income on the second claim on the basis of the 52 weeks prior to the second incapacity, that is the incapacity which commenced in or about late September 1993 to early January 1994. 4. The decision by the Review Officer seems to be quite correct. It accords with a Judgment of the High Court which interpreted the same statutory provision ARCIC v Tarr, (High Court, Wellington AP24/95 [1996] 3 NZLR 715, decision of McGechan J and Doogue J 26 July 1996). The Appellant was required to bring any appeal within 28 days after the date on which he was notified of the decision of the Review Officer. He has not done so. The appeal is approximately four and a half years late which is the period from June -. .. . 1994 when time for appealing expired to January 1999 when the present appeal was filed. The Respondent referred me to ARCIC v Tarr (1995) 1 BACR 14, a decision of Middleton DCJ who adopted the four factors referred to by Casey J, Mcdougall [1993] 4 NZAR 85 as being relevant to late applications for appeal. Those factors were: (a) The length of the delay. (b) The reasons for the delay. ( c ) The strengths or merits of the Appellant's case, and (d) Prejudice to the respondent. The Appellant has not given any evidence concerning the reasons for delay. I am however prepared to accept in the absence of any objection from the Respondent 5. that his ground for so doing were as he stated them orally to me at the hearing. He said that after making a number of enquiries of the Respondent he found out that they had a "28 day" rule. This was not put in evidence but it was described to me by Respondent's counsel as being a rule of thumb which the Corporation applied when determining whether or not a subsequent incapacity had arisen or whether a claim should be treated as a fresh incapacity or the continuation of an earlier incapacity. The administrative guidelines which the Corporation has adopted, presumably to give guidance to its employees, is that the presumption is that where a person has been incapacitated but is subsequently assessed as being fit to return to work then if that period of resumed work does not exceed 28 days, the further incapacity which stops him working will be regarded as being a continuation of the earlier incapacity. As I understand it Mr Kilsby takes the position that the reasons for not bringing an appeal earlier was that while he knew about the 28 day rule, it was only at a point well subsequent to when the Review Officer's decision was given that he learnt that the so called rule had no legal effect and was for administrative guidance only. I am afraid that I am unable to agree that the existence of the so-called 28 day rule or the Appellant's perception of its effect has any bearing on whether or not he has a reasonable explanation for the delay in bringing the appeal. If he had been mistaken about a relevant matter, such as what the appeal period was, then that is something I could take into account. The fact that he only came to a conclusion that he had rights of appeal when he found out that the 28 day rule did not have the 6. force of law does not in my view assist him. The issue of the existence of the rule had nothing to do with his rights of appeal. Alternatively, it does not add anything to the strength or merits of the Appellant's case and accordingly if viewed as being relevant to category C of the McDougal categorisation, I have to conclude that it does not help the Appellant. The Corporation is entitled to adopt rules of thumb in this matter. But more importantly, the Corporation has to obey the law. It has to determine whether or not there has been a subsequent incapacity. The hearing officer considered that the incapacity which commenced in December 1993 was a new period of incapacity and that that was a conclusion justified by the medical information on file. Certainly, in the light of the fact that Mr Kilsby had been certified -.-- - as being fit to return to work in September - some three months prior to his finding that he was no longer fit to work in December - justifies the conclusion on the part of the Review Officer that the first period of incapacity had come to an end and that a further or new incapacity commenced in December 1993. The burden of proof is on the Appellant to demonstrate that the Review Officer was wrong. No application was made to place further evidence before me at the hearing. I would therefore conclude that the Appellant's prospects of success on appeal are minimal. So far as prejudice is concerned, in a general way I suppose it might be said that for the Respondent to be required to enter into a debate about the nature of the Appellant's medical condition some four and a half years ago puts it at a disadvantage. However, I would not be disposed to think that if the case for leave to appeal out of time was otherwise a good one that prejudice to the Respondent would defeat it. However because of the matters I have set out above concerning 7. the length of delay, the reasons for the delay and the strengths or merits of the Appellant's case, I decline to grant leave. The Respondent conceded that I hadpower to grant leave but it opposed the granting of such leave. For all of those reasons the appeal must be dismissed. (Jeremy P Doogue) District Court Judge