Nicoresti-Goode v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. IS 8 /96 HELD AT WELLINGTON 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 TANYUSHKA LOUISE NICORESTI-GOODE Appellant (Appeal No. DCA 125/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 20th day of November 1996 Counsel: Mike Basil-Jones for appellant Dane Tui for respondent DECISION OF JUDGE D A ONGLEY This appeal concerns a question of fact, namely whether the appellant lodged a claim for cover before Ist October 1992. The respondent's view is that no claim was lodged until 9th February 1993, and the appellant was then unable to apply for, and elect to receive, lump sum compensation. The appellant claims to have lodged a claim for cover in about July 1992 and to have applied for a lump sum payment in February 1993 whereupon she was told that she was not entitled because her claim for cover had not been lodged in time. The review officer made findings of fact favourable to the appellant, but determined that as she had not elected to receive lump sum compensation, despite the alleged reason that she had been wrongly advised by the Corporation, she was unable to bring herself within the requirements of s 147 of the Accident Rehabilitation and - 2. Compensation Insurance Act 1992 so that her claim for lump sum compensation failed. The respondent was not represented at the review hearing on 23rd February 1996. The evidence of the appellant was therefore unchallenged. It was recited by the review officer as follows: "The applicant said that her first application was lost or misplaced. The original claim was made on 3 July 1992, and the applicant made reference to a C14 completed by Dr Woodbridge in support of the contention. She also referred to a letter from Dr Mark Insull dated 16 March 1992. The two top copies of the C14 were sent to the Corporation. The applicant contacted the Corporation about 8 months to a year later, and was told that either a claim had not been lodged, or it had been lost. She therefore had to start all over again, and another C14 was accordingly submitted, dated 15 March 1993. When submitting the second claim, she was advised that she was no longer entitled to a lump sum payment since the claim had been lodged after the cut-off date I pointed out that if the claim had been lodged on 15 March 1993, this was still prior to the cut-off date for electing to receive lump sum payments (being 1 April 1993). The applicant said that she was told at the time of lodging the claim for the second time that she was not entitled to lump sum payments. If she had not been told that she had no entitlement to lump sum payments, she would have made an election in writing in order to receive lump sum payment. The C14 dated 15 March 1993 was sent to the Corporation's Penrose branch in Auckland." The review officer made the following findings of fact: "The essential facts are that the applicant submitted a C14 (First Medical Certificate) to the Corporation in July 1992. The C14 was either lost or mislaid by the Corporation, and upon enquiry some time later, the applicant was advised to submit another application for cover. She was simultaneously advised that because the claim would then be lodged under the provisions of the 1992 Act, she would have no entitlement to lump sum payments. The applicant submitted a second C14, dated 5 March 1993, and cover was eventually extended. She did not at any stage, however, elect in writing to receive lump sum payment, because of the verbal advice she had received from the Corporation." After referring to decisions on appeal where lump sum claims had been rejected because of a claimant's failure to elect to receive lump sum compensation instead of an independence allowance, the review officer said: "In the present case, not only was the applicant's first claim (in the form of the C14) lost or mislaid, but she was then also given some flawed advice by the Corporation. These factors were the cause of the fact that no election in writing was made by 31 March 1993, and I understand the applicant's argument that the Corporation's decision is unjust." I have recited those passages from the review officer's decision, because it is evident that the review officer accepted the appellant's uncontradicted version of events. - 3 - There is still some mystery surrounding the date of submission of the claim. At the time of the review the appellant referred to a photocopy she had kept of the C14 medical certificate of 3 July 1992. There is no reference in the transcript of the review hearing or in the review officer's decision to indicate that the C14 form dated 3 July 1992 had been located on the file. At the time of the appeal, the C14 forms of 3 July 1992 in duplicate were located amongst material on the file that was affixed in April 1996 and thereabouts. The C14 form carried a receipt stamp on its front and back "ACC Panmure Branch Office 9 February 1993". That is the same date that is shown on a receipt stamp on the C1 Advice of Injury form that was in fact lodged in February 1993. The stamps appear to be identical. The Cl form has three other stamps on it, all of which are different and bear dates 9 February 1993 and 17 February 1993. The C14 forms do not carry any of those other three stamps. Mr Tui submitted that there is a clear possibility that the appellant did not lodge the C14 form in 1992, but that she, possibly inadvertently, retained it and did not lodge any claim with the Corporation until February 1993. That submission contains the suggestion that it would have been highly unlikely for the C14 form to have been mislaid by the Corporation and then for it to have been later found and included on the appellant's claim file, particularly with such a significant date stamp. That submission deserves some consideration, but it turns on various assumptions. In particular it is not appropriate to draw inferences without having any evidence of the circumstances in which the date stamps were affixed. The appellant's own evidence was found by the review officer to be satisfactory. If the date stamps are accurate, then it is surprising that the point was not put to the appellant at the review hearing or beforehand. The review has now run its course and in the circumstances the review officer's findings of fact do not need to be disturbed. The appellant was then entitled before 1st April 1993 to apply for lump sum compensation and to elect to receive that compensation. The application and election must be made in writing in terms of's 147 of the Act. The review officer is, of course, correct in his decision that the appellant is prevented by the terms of s 147 of the Act from obtaining lump sum compensation. Mr Basil- Jones submitted that once the appellant went so far as to communicate to an officer of the Corporation that she wished to obtain lump sum compensation, the officer should have recorded the claim in writing and also should have recorded that the appellant elected to receive lump sum compensation rather than an independence allowance. In fact there is no memorandum of the discussion at all. There is no notation recording a discussion with the appellant when, as she alleges, she was told that her claim had not been lodged. It is likely enough that such a discussion would not have been recorded because there would have been no file on which to place a note of the conversation. I am obliged to reject the submission that the Corporation had an obligation to make a written note of an oral application for a lump sum claim. I reject also the submission that the Corporation is estopped from denying the existence of a written claim in the circumstances. This is a statutory scheme whereby entitlements to lump sum compensation were revoked with the Accident Compensation Act 1982 on commencement of the Accident Rehabilitation and Compensation Insurance Act 1992 on Ist July 1992. Claims after that date could only be made in conformity with the - 4 - requirements of the transitional sections of the 1992 Act. For a lump sum claim, the requirements included written application and election within a specific time. The appeal must be dismissed. However, it should be added that this appears to be a proper case to be considered under the Corporation's wrongful action discretion. It is only fair that the appellant's unchallenged evidence and the findings of the review officer should be accepted as the basis for such claim. It follows then, that the appellant attempted to make a lump sum claim in due time, and it should be assumed that, if she had not been rebuffed, her approach to the Corporation would have resulted in a claim and election of lump sum compensation being recorded in writing. If the appellant's explanation of the matter is accepted, as it was by the review officer, it follows that the misplacing of claim forms, leading to wrong information being given to the appellant, effectively discouraged and prevented her from making a claim in due time. The material on the file does not convey a suspicion of a trumped-up explanation designed in an attempt to make a late claim. The consideration of a wrongful action claim is beyond the jurisdiction of the District Court on appeal. The appeal must be dismissed. DATED at WELLINGTON this 2 3 day of December 1996 D A Ongley District Court Judge