Kefali v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 140 / 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 SHIRLEY ANNE KEFALI of Auckland Appellant (Appeal No. DCA 291/95) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS I have received submissions from the appellant and from Mr A E Howman for the respondent with the request that I issue a decision on the papers. On 16 June 1993 the respondent received an application for cover from the appellant which is dated 11 June 1993. In that claim form the appellant stated that she had suffered injury being a tempero-mandibular joint dysfunction while undergoing anaesthetic in June 1988 and continues to suffer pain. The respondent made inquiries as a result of which it ascertained that the appellant underwent an umbilical herniorrhaphy on 3 June 1987 under anaesthesia. It appears that in the course of this procedure the problem with the tempero-mandibular joint occurred. On 19 September 1994 the respondent advised the appellant that following the findings of the Medical Misadventure Advisory Committee her claim for cover was accepted by the respondent. As a result the appellant received physiotherapy treatment for her pain problems the cost of treatment being covered by the respondent. 2 On 20 April 1995 the appellant inquired about the possibility of lump sum compensation. The respondent found that the appellant had received physiotherapy treatment in 1988 and 1989 which was paid by the respondent. On 18 May 1995 the respondent advised the appellant that she was not eligible for lump sum compensation arising out of injury sustained in the medical mishap in June 1988 because her claim had not been lodged before 1 October 1992 as required by s.147. In her evidence before the review officer, the appellant stated that after the surgery in June 1987 she had to have physiotherapy treatment because of the misalignment of her jaw resulting from the administration of anaesthesia. The appellant told the review officer that she had suffered considerable pain since the operation and that as the respondent had accepted liability for payment of physiotherapy treatment after the operation it should now accept her claim for lump sum compensation. The review officer acknowledged that there was a link between her accident and the treatment she received which was paid for by the respondent. He found that the problems then suffered by the appellant filled the criteria for medical misadventure under the 1982 Act. However, he considered that the question of lump sum compensation was a separate issue and that since the application had not been lodged until 1993 that issue had to be considered under s.147 of the Accident Rehabilitation and Compensation Insurance Act 1992. He held that as no written election for lump sum compensation was lodged with the respondent before 31 March 1993 she was not entitled to lump sum compensation but was entitled to be assessed for an Independence Allowance under the 1992 Act. It is against that decision which the appellant now appeals. In her submissions to the Court the appellant has repeated the history of the manner in which the injury occurred in the course of the operation in 1987. She submitted that as the damage occurred at the operation and she has suffered thereafter, she should be entitled to a lump sum award. Mr Howman submitted that the decision of the review officer was correct and that as the claim was not made until after 1 October 1992 and no written election for a lump sum award was made by 31 March 1993, the decision of the review officer was correct. In his decision the review officer referred to the decision of Judge Imrie in Bright and Others (95/94) which analysed the requirements of s.147 of the 1992 Act. The review officer set out Judge Imrie's findings which I do not need to repeat. However, the basis of the decision is that s.147 requires that where a person who has had a claim accepted under the provisions of the Accident Compensation Act 1982, as this appellant has, and wishes to make a claim for lump sum compensation, then the written application for that compensation must be lodged with the respondent not later than 31 March 1993. As this appellant did not lodge her claim for lump sum compensation until April 1995, then she is only entitled to apply for an Independence Allowance. The appellant should be aware that there is no description which enables the respondent or this Court to go outside the very strict provisions of the section 3 and unless she had lodged her application for a lump sum award before 1 April 1993, she is not eligible for the payment of such an award. The fact that she had received cover under the 1982 Act does not overcome the strict requirements of s.147. Consequently the appeal must be dismissed. DATED at WELLINGTON this 22 rd day of November 1996 A W Middleton District Court Judge dc291-95.doc(rd)