Kilsby v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 167 /98 IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN RUSSELL GODFREY KILSBY DCA 414/97 Appellant 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 July 1998 APPEARANCES: Mr R G Kilsby in person Mr A D Barnett for respondent DECISION OF JUDGE MJ BEATTIE The issue in this appeal is whether the Corporation has correctly calculated the appellant's entitlement to weekly compensation. Associated with that issue is the issue of whether it is open to the Corporation, and this Court on appeal, to N reconsider and deal with afresh a finding made in an earlier review decision relating to the appellant's incapacity. BACKGROUND The appellant suffered a disc prolapse following an accident on the 6th of September 1992. At the time of his accident he was employed as an engineer by Peninsula Engineering. He continued to work after initial treatment until April 1993. In April 1993 he was examined by Dr McAuslan, Orthopaedic Surgeon, who determined that an operation was required to release pressure on the nerves at the base of the spinal cord. At that time he was deemed unfit for work and he commenced to receive weekly compensation from May 1993. An initial calculation was made based on information provided and then the weekly sum was increased from July 1993 when further information as to his relevant earnings was obtained. The appellant underwent an operation on the 20th of July 1993 for removal of the prolapse and in a certificate dated 20th August 1993 Dr McAuslan advised that the appellant would be fit to return to normal work on 20 September 1993. As a consequence of that advice weekly compensation for the appellant terminated on 20th September 1993 at which time the appellant returned to work. On the 14th January 1994 Dr W P Hall certified the appellant as unfit for any type of work as from 7th January 1994 and the appellant again sought weekly compensation. 3 The Corporation treated this application for weekly compensation as being for a subsequent period of incapacity rather than simply a resumption of the weekly compensation paid to him prior to his return to work in September 1993 and therefore required details of his income for the 52 weeks immediately prior to 7th January 1994. Certain information was supplied by the appellant and it required verification of certain figures. In the meantime the Corporation agreed to pay weekly compensation at an interim level until the final amount could be calculated. On 3rd February 1994 the respondent recalculated the appellant's entitlement to weekly compensation taking into account his earnings for the period 20th September 1993 to 6 January 1994. The amount so calculated was queried by the appellant and the respondent advised that the calculation made took into account the period worked between September and December 1993 and advising that the incapacity of 7th January 1994 was a subsequent period of incapacity. The appellant sought to review the decision of the Corporation fixing the amount of compensation and its decision as to the fact of subsequent incapacity and a review hearing took place on the 20th of May 1994. In his decision of 17th June 1994 the Review Officer found that the appellant had further incapacity from 7th January 1994 and that it was a subsequent incapacity even though it was a flare up of the original injury. The appellant was informed of that decision and advised of his rights of review. The amount of compensation paid being that confirmed in that review decision continued to be paid and no further action was taken by the appellant in relation to his weekly compensation entitlement. In January 1995 the appellant requested that the Corporation reconsider his case under its wrongful action policy but the Corporation declined to do so. 4 In October 1996 the appellant wrote to the Corporation requesting a recalculation of his weekly compensation on the basis that the figures used by it for its calculations did not include an amount of holiday pay that had been paid by the previous owner of Peninsula Engineering before he sold the business and which was paid to the appellant during the December 1992 January 1993 holiday period. In January and February 1997 further recalculations of his weekly compensation were carried out and his weekly sum was increased marginally from $433.84 per week gross to $438.97 per week gross. The appellant lodged a review of that decision and in a decision of Ist December 1997 the Review Officer confirmed the Corporation's decision. It is from that decision that the appellant appeals to this Court. In the course of submissions to the Review Officer counsel for the appellant sought to have the Review Officer revisit the issue of whether there was a subsequent incapacity or whether the appellant was continuing to suffer some incapacity between September 1992 and December 1992 and was thereby entitled to be considered under the abatement provisions, rather than be regarded as having returned to work full time. The Review Officer held that if the appellant had disagreed with that first Review Officer's decision he had the right to appeal it but had elected not to do so. Therefore he ruled that he could not go back in time and review the correctness or otherwise of that decision so made. For whatever reason the Review Officer then proceeded to briefly consider the evidence on the point and came to the same decision as the earlier Review Officer had done and at the same time he ruled that the Corporation had correctly assessed the amount of the 5 appellant's entitlement to weekly compensation and that it had calculated it for the correct 52 week period. It was the appellant's submission to this Court that in some way the Corporation had misrepresented the situation or had misled him about his ongoing entitlements at the time that he was returning to work. The appellant refers to the 28 day rule which he says the Corporation did not tell him of and which, because it kept it to itself , it thereby gained the advantage of being able to assert that he had returned to work fully fit and had thereafter suffered a further incapacity. He contended that if he had been aware that the Corporation used as a rule of thumb a 28 day return and if there was a flare up within that time then it would not be regarded as a further incapacity, he would have advised it within that 28 day period of his ongoing difficulties. There is undoubtedly a policy of the Corporation regarding a 28 day period and a copy of the relevant page of the Corporation's "manual" was produced which indicated that as a rule of thumb a person will be regarded as having a subsequent incapacity when, after being incapacitated, a claimant has been fully fit for more than 28 days and sustains further incapacity as a result of that same personal injury. The appellant contends that if he had been aware of this rule he would have ensured that he obtained medical advice to confirm that he had not been fit for more than 28 days. The other aspect of the appeal concerns the calculation of weekly compensation and the taking into account of a sum of holiday pay paid to the appellant earlier than within 52 weeks prior to his subsequent incapacity but relating to a period of holiday within that 52 week period or partially within that 52 week period. This Court observes that some of that holiday pay was included in the calculation and some of it not and it turns out that whilst the Corporation may 6 have not taken into calculation two of the eight working days of paid holiday that fell within the period, it did in fact take into calculation two days of paid holiday that fell outside the period, namely, New Years Eve and New Years Day, thereby resulting in no loss to the appellant. The provisions of section 90 of the Act pertain to reviews of Corporation's decisions and subsection (3) states: "Except as provided in this part of this Act decisions of persons appointed under subsection (1) of this section shall be binding on all parties to the review." The only exception in that part of the Act is the right of appeal and as that right was not exercised the decision of the Review Officer of 17th June 1994 as to the fact of a subsequent incapacity from 7th January 1994 cannot be revisited and must be now regarded as res judicata. It is not open to this Court in this appeal to revisit the surrounding facts and make a fresh decision on that issue. That issue has been finally determined between the parties for all time. Insofar as the calculation of the weekly compensation is concerned I find that the Corporation's calculations are correct and that they have used the correct period in determining the appellant's entitlement. The question of whether the Corporation should have notified the appellant of its policy regarding subsequent incapacity is not one which this Court can adjudicate on. There is no statutory framework for this policy and it is obviously an administrative matter which has been formulated for the purposes of administering the provisions of the Act. I find there is no evidence to suggest that the Corporation "kept it secret" as suggested by the appellant. However I can see that there may be good reasons why such a policy should not be publicised as to do so may encourage people to take advantage of it when the circumstances would dictate that a greater than a 28 day period of full capacity was the true position. 7 Accordingly then the appellant has not made out any basis for disturbing the findings and rulings of the Review Officer and this appeal is dismissed. DATED at WELLINGTON this 28" day of July 1998 MJ Beattie District Court Judge Kilsby.doc KD