Sahib v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 83 /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 SHEIK INAMUL HAQUE SAHIB DCA 273/97 Appellant AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 15th day of April 1998 APPEARANCES: Mr S I H Sahib in person Mr D Tui for respondent DECISION OF JUDGE M J BEATTIE The issue in this appeal is whether the appellant is entitled to an independence allowance under the provisions of section 54 of the ARCI Act 1992 in respect of injuries sustained in a motor accident on the 3rd of June 1988. 2 Background The Corporation's files compiled consequent upon the appellant's injury sustained in a motor accident on the 3rd of June 1988 are now extremely voluminous. There have been a considerable number of decisions made by the Corporation over the years which have gone to review and some of which have proceeded further to final determination by the Accident Compensation Appeal Authority. For the purposes of this appeal Counsel for the respondent set out the various matters which had occurred on this file since its inception, but having reviewed the file against that rather lengthy statement of the background facts, I find that many of them are largely irrelevant for the purposes of a determination of the issue which is before this Court. The salient facts I find to be as follows: The appellant suffered injuries to his back and chest in a motor accident on the 3rd of June 1988. The injuries sustained were not regarded as severe. Initially the appellant was granted earnings related compensation but this ceased on 5 May 1990 when the Corporation no longer considered that the appellant's symptoms were as a result of that accident, but rather were the manifestation of a pre-existing degenerative condition of his back. In addition the Corporation had the opinion of an orthopaedic surgeon Mr Nicholson that the appellant had recovered from his injuries such as he was able to resume work. In March 1993 the appellant applied for consideration of lump sum compensation under sections 78 and 79 of the 1982 Accident Compensation Act. 3 The initial decision of the Corporation was to decline any lump sum under either section of that Act but on review the Review Officer made an award of $3000 under section 79 of the 1982 Act and confirmed the nil award under section 78. In November 1994 the appellant filed an appeal to the Accident Compensation Appeal Authority in respect of firstly, the decision of 3 May 1990 to cease compensation and associated entitlements, and secondly the decision of the Review Officer of 30th March 1994 to award only $3000 lump sum under section 79 of the 1982 Act. By decision dated 23rd December 1996 the Accident Compensation Appeal Authority dismissed the appellant's appeal in relation to the cancellation of earnings related compensation in May 1990. By a separate decision dated the 31st day of January 1997 the Accident Compensation Appeal Authority allowed the appellant's appeal and increased the award of lump sum entitlement under section 79 of the Act to $7000. On the 14th of April 1997 the appellant applied for an independence allowance and by decision of 23rd April 1997 the Corporation advised the appellant that his application was declined on the basis that there was no medical evidence that he was entitled to such an allowance. The appellant sought a review of that decision and a decision was issued on the 25th of July 1997 confirming the correctness of the Corporation's decision and stating that the appellant had no entitlement to an independence allowance. For the purposes of the appeal to this Court the appellant, and to a certain extent counsel for the respondent, have sought to revive all the medical evidence that has been gathered by the Corporation from various specialists over the years relating to the appellant's physical condition. It is the respondent's position that 4 the appellant has long since recovered from the injury he sustained in the motor accident but that that accident probably did trigger off pre-existing degenerative changes in his spine and which is the cause of his ongoing pain. The appellant has cervical spondylosis and this is degenerative change and not as a consequence of any accident trauma. It was on the basis of the medical evidence that the respondent contended that the appellant was not entitled to an independence allowance as he could not bring himself within the provisions of section 54 of the 1992 Act as any disabling factors were not attributable to accident. It was the appellant's contention that the medical evidence established that the accident triggered everything off and that prior to the accident he was active, fit and healthy. Having considered those submissions I find that the medical evidence and the issue of whether there is any causal nexus between the appellant's injury from the accident and his present symptoms is irrelevant as there is a simple statutory bar to the appellant being entitled to receive an independence allowance under the 1992 Act. The Review Officer I find correctly identified the matter and his decision I find is sound in law. There is no dispute, and indeed the Court sought confirmation from the appellant at the hearing, that his claim for an independence allowance was in respect of the injury sustained in the 1988 motor accident. Dealing from that basis I find, as did the Review Officer, that the transitional provision of section 148 of the 1992 Act is the relevant statutory provision. That section states as follows: "148. Persons who have received lump sums under former Acts... (1) Except as provided in subsections (2) and (3) of this section, where any person has received any payment under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982, that person shall not be entitled to any independence allowance under this Act in respect of that personal injury. (2) Where any person to whom subsection (1) of this section applies has already received compensation for personal injury by accident under section 119 or section 120 of the Accident Compensation Act 1972 or section 78 or section 79 of the Accident Compensation Act 1982 between the 30th day of June 1991 and the Ist day of July 1992 (both days exclusive), that person shall be entitled to refund all such payments received to the Corporation not later than the Ist day of April 1993 and receive an independence allowance in respect of that personal injury by accident under and subject to the conditions of this Act payable from the date on which the assessment for the independence allowance was made or the refund was paid, whichever is the later. 3) Notwithstanding subsection (1) of this section, any person who suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the Ist day of July 1992, and who has, since the Ist day of July 1992, suffered an increased degree of permanent loss or impairment of bodily function resulting from that personal injury by accident, may apply for an independence allowance under and subject to the conditions of section 54 and 54A of this Act, but any such independence allowance shall be calculated by deducting from any whole-person impairment assessed under those sections any percentage permanent loss or impairment of bodily function in respect of that personal injury by accident in respect of which a payment has been made under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982." 6 In accordance with section 148(1) the appellant has received payment of lump sum compensation under section 79 of the 1982 Act in respect of the personal injury sustained by him in the accident of 3rd June 1988 and is thereby not entitled to any independence allowance under the 1992 Act in respect of that personal injury. I find as a fact that the provisions of section 148(3) do not apply as there has been no evidence adduced which would bring that subsection into play. For the avoidance of doubt I rule as a matter of law that the provisions of section 54 of the 1992 Act, which relate to the entitlement to an independence allowance only apply to persons who have sustained personal injury by accident after Ist of July 1992. Any accident which occurred before that date is covered under the transitional provisions and those provisions only. If no lump sum has been paid then the entitlement to an independence allowance for a pre 1 July 1992 injury arises under section 147(3). The foregoing ruling may be somewhat confusing to this appellant because at some point after the coming into force of the 1992 Act he did obtain an independence allowance and this was paid to him for some time along with certain other entitlements, all such entitlements purportedly stemming from the 1988 accident. Those entitlements were not cancelled until a decision of the Corporation on February 15th 1996. The appellant did not seek any review of that decision until some time in 1997 and was advised that such decision could not be reviewed because the time to bring such review had long since lapsed. Indeed it was the appellant's application for a fresh independence allowance, which has ultimately become the subject of this appeal, that was an attempt by the appellant to revive all the matters that had been cancelled in 1996. 7 The Corporation should not have granted an independence allowance to the appellant as he was not entitled to one under the Act and he remains forever disentitled in respect of the 1988 injury unless and until he can bring himself within the provisions of section 148(3) of the Act. Accordingly this appeal is dismissed. DATED at WELLINGTON this 30 day of April 1998 MJ Beattie District Court Judge Sahib.doc KD