Mullet-Merrick v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 85 /98 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN STUART JAMES MULLET- MERRICK of Gisborne Appellant (Appeal No. DCA 298/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at GISBORNE on the 23rd day of March 1998 APPEARANCES Appellant in person A S Sarkar for respondent DECISION OF JUDGE A W MIDDLETON The issue in this appeal was whether the respondent was entitled to cancel the appellant's weekly compensation pursuant to section 73(2) of the Act. The file discloses that after considerable disagreement between the appellant and the respondent, the appellant signed an Individual Rehabilitation Programme which provided, inter alia, that he was to contact his Case Manager each week and provide details of at least three employers contacted by him for the purpose of employment opportunities. The appellant advised his Case Manager that he was unhappy at 2 having to complete job search forms. Warnings were given to the appellant that failure to comply with the Individual Rehabilitation Programme could result in a cancellation of his entitlement. On 16 June 1997, the respondent notified the appellant that his weekly compensation was ceased pursuant to section 73(2) of the Act. The letter indicated that his failure to attend an appointment at the New Zealand Employment Service and his failure to contact his Case Manager to discuss reasons for non-attendance and his failure to provide job search forms were the reason for the cessation of weekly compensation. The appellant applied for a review of that decision which was upheld by the Review Officer. The appellant has appealed against that decision. Since the appeal was filed the decisions of Judge Beattie in Hyde v ARCIC (14/98) and Fletcher v ARCIC (18/98) were issued, Ms Sarkar quite properly conceded that on the basis of those decisions the respondent could only suspend or cancel payments pursuant to section 73(1) and it could only suspend or cancel such payments if it was satisfied that the claimant was no longer entitled to receive that payment. She submitted that Judge Beattie had found that section 73(2) was aimed at withholding payments from applicants who had unreasonably refused to comply with any requirements made under any provision of the Act and that the withholding of payments could only continue for so long as there was an unreasonable refusal or failure to comply with any requirement. Ms Sarkar submitted that in this case it was clear that the appellant had failed to comply with the requirements of his Individual Rehabilitation Programme and that accordingly, the respondent was entitled to decline payment of weekly compensation while he continued in default. The appellant indicated that his limited ability, which were well known to the respondent, made it a waste of time for him to complete job search forms. He said that he had discussed an arrangement with his Case Manager by which he could be given some assistance in training as a Journalist which work he could undertake at home. He said that he has at all times been willing to endeavour to work and at the moment is endeavouring to establish a business of his own which he can operate from his home. While the respondent is entitled to withhold payments of compensation while the appellant is default, it does appear to me that there has been a considerable misunderstanding in relation to the management of his appellant's case. He only has the ability to do a limited range of work which he submits necessitates tasks which he can perform from home. He submits that he has needlessly (in his view) gone from street to street canvassing possible job prospects in places where it is obvious he does not possess the physical capacity to do the work if it was available. He submits that by having to do that and to then produce weekly job search forms is a waste both for him and the respondent. I consider that there should be some way in which the respondent can discuss with him an appropriate Individual Rehabilitation Programme which would dispense with weekly job search forms on the understanding that the appellant would be available to attend any appointments for possible employment opportunities should they arise through the New Zealand 3 Employment Service. In the meantime he should continue to explore the possibility of running his own business from his home. Accordingly I advise the appellant that he should immediately communicate with the respondent in an endeavour to reach a satisfactory mutual agreement whereby the need for regular job search forms can be abandoned. While there appears to have been some antagonism between the appellant and his Case Manager, I consider that some form of mutual agreement should be possible to avoid the unnecessary waste of time and effort in providing weekly job search forms. In the circumstances it was a failure on the part of the appellant to comply with the requirements of his Individual Rehabilitation Programme which have led to the cessation of payments. I advise him that the sooner he returns the forms the sooner his weekly compensation can be reinstated but having said that, I consider that steps should be taken to provide alternative arrangements as I have discussed in this decision. While the appellant raised the question of backdating, I do not consider that he is entitled to that. He did fail to comply with his Individual Rehabilitation Programme and he must accept the consequences of that. Accordingly the appeal is dismissed. DATED at WELLINGTON this Ist day of May 1998 Anddura A W Middleton District Court Judge dc298-97.doc (nr)