Barone v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 171 /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 TEENA MARIA BARONE of Palmerston North Appellant (Appeal No. DCA 320/97) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD at PALMERSTON NORTH on the 16th day of July 1998 APPEARANCES A R V Rowlett - advocate for appellant S Rowan for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the appellant made an application for review of a decision of the respondent within the three month time limit. The facts which give rise to the appeal are that the appellant suffered a strain to her back, neck and left elbow on 26 June 1995 for which she lodged a claim for cover which was accepted by the respondent. In January 1997 the respondent reviewed the medical information in which the appellant's condition had been diagnosed as fibromyalgia as a result of which it notified the appellant on 10 February 1997 that 2 ongoing entitlements were declined because it considered her ongoing incapacity was no longer the result of personal injury. The appellant, with the help of her social worker, Helen Simmons who is employed at the MidCentral Health Rehabilitation Centre at Palmerston North Hospital, completed an application for review of that decision. A file note indicates that on 12 May 1997 the appellant telephoned the respondent's Branch Manager at Wanganui requesting information as to when her review would be held and she was advised that no application had been received by the respondent. The appellant lodged a photocopy of the review application with the respondent and on 19 May 1997 the respondent declined the application. An application for review of that decision was lodged and a hearing held on 18 August 1997 when the review officer upheld the respondent's decision. It is against that decision which the appellant now appeals. I have examined the file in some detail because the question before me must be decided on the evidence which was available to the review officer. At the review hearing the appellant stated that when the respondent's decision was received her husband had faxed a copy to her in Palmerston North which she received on 12 February 1997. She then, with the assistance of Helen Simmons, completed an application for review of that decision and for some reason Helen Simmons who has been instrumental in assisting the appellant with other issues in relation to the respondent, kept a photostat copy of that application which was subsequently submitted and is dated 12 February 1997. The appellant told the review officer that after completion of the application for review the application was put into an envelope and addressed. Helen Simmons told the review officer that she probably addressed the envelope because the appellant has poor reading and writing skills which is one of the reasons she has been assisting her. However, Helen Simmons was definite that the envelope used for return of the application was not one provided by the respondent which would have been consistent with the fact that a copy of the decision letter had been faxed by the appellant's husband to her. The appellant, who is not familiar with Palmerston North, after some hesitation, confirmed that she had posted the application that day, on 12 February 1997, at the Terrace End Post Office. It was not until 12 May 1997 that the appellant made the inquiry of the Wanganui Manager as to the progress with her application for review. However, the record shows that during the course of another review hearing on 26 March 1997 in relation to another matter and before another review officer, Helen Simmons told that review officer that in relation to this matter that it was intended that "a review will be put in for that as well". A copy of the record of the transcript of that review is currently on the file and the Corporation's representative, Mr Rattenbury, gave evidence at the review in respect of this matter that he was also present at that other review hearing when Helen Simmons gave that answer. In her decision the review officer noted that an application for review was completed with the help of Helen Simmons and "was in all probability completed on 12 February 1997, there is no conclusive evidence as to when it was posted". She also considered that the evidence at the review hearing on 26 March 1997 when the wording that "a review 3 will be put in for that as well" raised some doubt in her mind that if the application had already been completed there was not the need to use the words "will be". The review officer concluded that she thought the appellant was somewhat defensive in her evidence and that she was not therefore convinced that the application had been posted and declined the application for review. Mr Rowlett submitted that the evidence of both Helen Simmons and the appellant had been given on oath and should be accepted as reliable. He also submitted that the records clearly indicated a request by the appellant to the Wanganui Branch Manager on 12 May 1997 as to the progress with the application for review. He submitted that the transcript of the March review hearing should be some support for the evidence on oath already given by the appellant and Helen Simmons. He submitted further that without a registration receipt there could be no absolute proof of the posting of the application. Ms Rowan submitted that by virtue of s.89 of the Act an application for review must be lodged within 3 months of the notification of the respondent's decision. She submitted that the issue is whether the appellant did post the application on 12 February 1997 as stated. Ms Rowan submitted that the review officer was entitled to cast some doubt on the evidence because neither Helen Simmons nor the appellant could recall who placed the completed application in the envelope and addressed. She submitted that further doubt was raised by a file note from the Manger of the Wanganui Branch which indicated that the appellant had said to him in May 1997 that the application had been filed about two weeks after receipt of the respondent's decision. Ms Rowan submitted that it was open to the review officer to evaluate the overall weight of the evidence in the light of the appellant's demeanour. The issue which concerns me most is that Helen Simmons who has been assisting the appellant over a considerable period and is obviously employed in a position where she does this for many other applicants for compensation, clearly assisted in the completion of the application for review which is confirmed by her having taken a photostat copy of it. That application was dated 12 February 1997, two days after the decision was issued by the respondent and on a time basis would agree with the appellant's evidence that it had been faxed to her at Palmerston North by her husband. Helen Simmons was adamant that an envelope was addressed which would be consistent with the evidence that the husband had faxed the decision without forwarding an envelope. Helen Simmons also considered that because of the appellant's lack of writing skills she would have completed the envelope herself. The review officer raised some doubt as to the appellant's evidence that she was definite that she had posted the letter at the Terrace End Post Office in Palmerston North. I accept Mr Rowlett's submission that this was duly explained by the appellant's own evidence before the review officer that she does not have a good knowledge of the streets in Palmerston North and needed some prompting before she could identify the Post Office as being Terrace End. While I hesitate to over-rule a review officer's finding on facts, a careful study of the transcript of the review hearing and the fact that Helen Simmons kept a photostat 4 copy of the application and the appellant herself queried the Wanganui Manager tend to confirm that the application was in fact completed and posted on 12 February 1997. The additional support for this finding is the fact that at the other review hearing at which both Helen Simmons and the appellant were present Helen Simmons indicated that the decision of the respondent in this matter was to be the subject of a review. I do not consider that the particular wording at that time should necessarily be taken in the manner in which the review officer did because it was really only an aside but it constituted confirmation that it was at least always the intention to apply for a review of that decision. In all the circumstances therefore I find that on the balance of probabilities the appellant is entitled to succeed and the appeal is allowed. There will be costs to the appellant of $750. DATED at WELLINGTON this 31st day of July 1998 A W Middleton District Court Judge dca32097.doc(rd)