Wolk v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND Decision No. 79/97 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN STANISLAW WOLK of Pakuranga, Auckland Appellant (Appeal No. DCA 351/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 9th day of April 1997 APPEARANCES Appellant and Mrs Wolk T P Cleary DECISION OF JUDGE A W MIDDLETON The issue in this appeal is the appellant's entitlement to weekly earnings following his attaining the age of qualification for payment of National Superannuateon. The appellant was injured in a motor vehicle accident on 4 March 1994 as a result of which he was granted cover under the Accident Rehabilitation and Compensation Insurance Act 1992. The appellant became entitled to weekly compensation as from 9 April 1994. 2 On 12 March 1996 the respondent wrote to the appellant and said: "According to our records you have now reached National Superannuateon qualifying age. In order for your payments to continue without interruption could you please complete the enclosed election form. Should you elect Weekly Compensation your entitlement will continue until you attain the age of 65, at which stage your National Superannuateon will start. If you elect National Superannuateon your entitlement will continue for one year and then cease. Under the Accident Compensation Act 1992 (sic) you are entitled to receive both entitlements for one year and then your election becomes valid." On 16 April 1994 the appellant elected to continue to receive weekly compensation instead of national superannuateon. The respondent then wrote to the appellant on 3 October 1996 stating: "This is to advise you that your weekly compensation will be ceasing on 21 November 1996, when you will attain the National Superannuateon Qualifying Age which is 62 years and nine months. This is in accordance with Section 142(1) of the Accident Rehabilitation and Compensation Insurance Act 1992." The appellant applied for a review of that decision on the grounds that he considered he was entitled to receive weekly compensation until he reached the age of 65. The Review Officer held that the respondent's letter of 12 March 1996 contained errors but that the respondent could not be bound by the errors it had made and that the appellant's position was covered by the requirements of section 52. The application for review was accordingly declined. It is against that decision which the appellant now appeals. In her submissions Mrs Wolk said that she and the appellant had acted on the misrepresentation made by the respondent and had arranged their financial affairs based on the information contained in the letter of 12 March 1996. She submitted that while the public is led to believe that this is the age of accountability she and the appellant had relied on the advice given in the letter and understood that he could continue to receive his payments until he attained the age of 65. Mrs Wolk said that the appellant had not applied for National Superannuateon until January 1996 on the basis of the information given by the respondent when in fact he should have applied in November 1995. She submitted that for this reason they had been out of pocket for the period between November 1995 and January 1996. Mr Cleary conceded that the information provided by the respondent in its letter of 12 March 1996 was clearly wrong. He submitted that as the appellant had suffered his accident after 1 July 1992, he was not a transitional claimant so that section 142 3 did not apply to him and that accordingly, there was no entitlement to weekly compensation until age 65. Mr Cleary submitted that section 52(1) provides that a claimant of National Superannuateon age is not entitled to any weekly compensation except as provided in section 52. He submitted that as the appellant attained the National Superannuateon age on 21 November 1996 and his accident was on 4 March 1994, he did not become entitled to weekly compensation until 9 May 1994. As this entitlement to weekly compensation was more than 24 months before his National Superannuateon qualification age of 21 November 1996, he therefore came outside the timeframe allowed in section 52(3). Mr Cleary submitted further that the letter of 12 March 1996 could not be considered to be a contract on the part of the respondent which is not estopped from revoking a decision if it is found to be erroneous or outside the provisions of the Act. Section 52 provides the age limits in respect of claimants who become entitled to National Superannuateon. The section states: "52. Age limits--- (1) Except as provided in this section, a person who has attained the national superannuateon qualification age shall not be entitled to any compensation for loss of earnings or loss of potential earning capacity under this Act (2) Where a person first becomes entitled to compensation for loss of earnings-- (a) On or after attaining national superannuateon qualification age; or (b) Within 12 months before attaining national superannuateon qualification age, -- that person shall not be disentitled on account of age to that compensation for a period of 12 months from the later of the date of attaining national superannuateon qualification age or date of first entitlement; and that person shall not be so disentitled for a further 12 months if the person makes an election in accordance with this section not to receive national superannuateon in respect of any period during that further 12-month period while that person is entitled to receive that compensation. (3) Where a person first becomes entitled to compensation for loss of earnings 12 months or more but less than 24 months before attaining national superannuateon qualification age, that person shall not be disentitled on account of age to that compensation for a period of 24 months from the date of first entitlement to that compensation, so long as the person elects not to receive national superannuateon after attaining national superannuateon qualification age while the compensation is payable. (4) Any election made under subsection (2) or subsection (3) of this section must be made-- (a) Within 1 month before the date on which the election would take effect, or (b ) Within 1 month after the amount of that compensation has been determined under this Act (including any decision on review or appeal) and notified to the person, -- whichever last occurs. 4 (5) Any election under subsection (2) or subsection (3) of this section may be exercised or reversed outside the period specified in subsection (4) of this section only if the Corporation is satisfied that the circumstances of the person have changed significantly since the expiry of that period. (6) Nothing in this section shall entitle any person to compensation for loss of earnings or loss of earning capacity in respect of any period for which that person is not otherwise entitled by virtue of this Act." When I had explained to the appellant and Mrs Wolk that Mr Cleary's submission was correct that the respondent has the power to alter any decision which is subsequently found to have been made in error, they accepted reluctantly that they had been mislead as a result of which they had lost money. While I am sympathetic to their position and while it is clear that they had acted on the erroneous information provided by the respondent, there is no discretion under which I can alter the decision of the Review Officer. The appeal must be dismissed. DATED at WELLINGTON this 29th day of April 1997 freemadula A W Middleton District Court Judge dc351-96.doc (nr)