Estate of Taewa v Accident Compensation Corporation

IN THE DISTRICT COURT Decision No. 194 /2009 HELD AT NAPIER IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN THE ESTATE OF JOHN TAEWA (Al 10/09) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at NAPIER on 14 September 2009 APPEARANCES Ms M Watson, Advocate for Appellant. Ms C Potter, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal concerns the respondent's decision of 22 August 2008, whereby it declined a claim brought by the Estate of Mr John Taewa for lump sum compensation in respect of his covered gradual process injury of Leptospirosis. [2] That decision was confirmed at Review and this appeal against that decision has been brought by the appellant's widow and Executor of his estate, Mrs K Taewa. [3] The relevant facts are not in dispute and may be stated as follows: The late John Taewa was employed as a meat worker in the freezing industry. 2 . In February 2005 Mr Taewa was diagnosed with Leptospirosis, a Schedule 2 Occupational Disease and for which he was granted cover under the Act. . Mr Taewa received treatment for his disease, which included admission to hospital, but his condition deteriorated and he died from the disease on 7 January 2006. . No claim for any lump sum compensation was made by Mr Taewa prior to his death and no assessment of any Whole Person Impairment caused by the disease had been undertaken. . In May 2008 Mrs Taewa, the deceased's widow, made application on behalf of the Estate for lump sum compensation. By decision dated 22 August 2008 the respondent advised that there could be no such entitlement as no impairment assessment had been carried out during Mr Taewa's lifetime. That decision was upheld at Review by Review Decision dated 5 December 2008. [4] At the hearing of the appeal Ms Watson, for the appellant, advanced the argument that had been presented by Counsel then representing the Estate at the Review Hearing. ] Essentially, it was Ms Watson's submission that ACC had formulated a policy relating to lump sum compensation for asbestosis and related diseases, in particular Mesothelioma, a Schedule 2 disease such as Leptospirosis. (6] Ms Watson submitted that it would wrong and capricious for the Corporation to make payment of compensation to claimants for one disease and not for the other. She further submitted that it was the case as far as she knew that Mr Taewa was the first meat worker to have died as a result of contracting Leptospirosis and it should be the case that the policy on asbestos related diseases should extend to other Schedule 2 diseases, such as Leptospirosis. 3 [7] Ms Potter, for the respondent, submitted that the Corporation's policy in relation to asbestos related diseases was not a recognition of statutory entitlement, but was simply a policy decision to consider payments outside the scope of statutory entitlement. [8] Counsel submitted that the late Mr Taewa did not satisfy the statutory criteria of being alive when assessed under Clause 59 of Schedule 1 to the Act, such an assessment being essential to the determination of whether there is an entitlement to lump sum or not. [9] Counsel submitted that there is no statutory discretion available to the Corporation and the wording of the applicable statutory provisions are clear. Counsel therefore submitted that the respondent's primary decision was correct and must be upheld. DECISION [10] According to Black's Medical Dictionary, Leptospirosis is a disease caused by infection with Leptospira, micro-organisms found in rodents in which they cause no harm, but when transmitted to man, either directly or indirectly as through cows, they give rise to various forms of illness. Leptospirosis is regarded as an occupational hazard for abattoir workers such as was the deceased, Mr Taewa. 11] The disease is recognised under the Act as being a disease associated with an occupation and by virtue of Section 30 of the Act there is no requirement to establish the statutory criteria for entitlement, the fact of being employed in a particular occupation and suffering the disease is sufficient for cover, and this was accepted by the respondent and cover was granted to Mr Taewa accordingly. [12] The Court has only been provided with an outline of the events which followed the diagnosis of the disease in February 2005, but it seems to be the case that despite treatment, including hospital treatment, the appellant's health went downhill and he never recovered from the disease and which ultimately resulted in his death in January 2006. [13] Whilst no doubt Mr Taewa received various entitlements from the Corporation during his lifetime, it is the case that no application was ever made by him for consideration of lump sum entitlement in accordance with Clause 54 of Schedule 1 to the Act. 4 [14] It is in fact the provisions of Clause 54 which have been raised by the Corporation as the reason for declining the application for lump sum. Clause 54 states as follows: Lump sum compensation for permanent impairment - Clause 54 The Corporation is liable to pay the claimant lump sum compensation in accordance with this schedule, if -- (a) the claimant has suffered personal injury, after the commencement of this part, for which he or she has cover; and (b) the claimant- (i) has survived the personal injury for not less than 28 days; and (if) is alive when assessed under clause 59; and (c) an assessment carried out under clause 59 establishes that the claimant's personal injury has resulted in a degree of whole person impairment of 10% or more." [15] Clause 59 is the clause which sets out the requirements of an assessment for entitlement, which assessment must be carried out by an authorised assessor. Clause 60 thereafter provides that the Corporation determines the amount of lump sum compensation based on the assessment of Whole Person Impairment, which impairment must be not less than 10%. [16] The final clause of relevance is Clause 62 which states as follows: Payment of entitlement to lump sum compensation to deceased claimant's estate Clause 62 "If a claimant dies after the completion of the assessment of the degree of permanent impairment but before payment of the lump sum, the Corporation is liable to pay the lump sum to the deceased claimant's estate." [17] It has often been stated in decisions in this jurisdiction that entitlements under Accident Compensation legislation are wholly a creature of statute and that entitlements can only be received when the necessary statutory criteria or processes have been established or followed. [18] In the present case, Ms Watson has, it would seem, accepted that the statutory criteria does not assist, and has therefore asserted the submission made at review, that if the Corporation is, as a matter of policy, making ex gratia lump sum payments in 5 asbestos cases, then surely that policy should also extend to claimants with covered injuries who die from other Schedule 2 diseases. [19] It must be stated that any discretionary or ex gratia payment made by the respondent, is wholly outside the bounds of statute, and this Court cannot follow or adopt such discretionary decision making when it is considering entitlements under the Act. [20] There is no dispute that the late Mr Taewa did not claim lump sum in his lifetime and therefore no assessment for same was had, and it must therefore follow that because he died before any assessment could be carried out, his estate cannot satisfy the statutory requirement of being alive when assessed [21] The requirement of an assessment is emphasised by the provisions of Clause 62 which provide for the situation where a claimant dies after completion of the assessment but before payment of lump sum is made. In those circumstances the lump sum is payable to the deceased's estate, as would be expected. [22] In the present case, I rule as a matter of fact and law, that the appellant's estate can have no entitlement to a lump sum by reason of there having been no assessment of Mr Taewa in his lifetime. [23] Accordingly then, the respondent's decision to decline the Estate's application for a lump sum was the correct decision and this appeal is dismissed. DATED this 12 day of November 2009 M J Beattie District Court Judge