Estate of Hollingsworth v Accident Compensation Corporation

IN THE DISTRICT COURT [2012] NZACC 345 HELD AT AUCKLAND IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN THE ESTATE OF KEVIN HOLLINGSWORTH (ACR 198/11) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON THE PAPERS [1] This appeal has been brought by Mrs Patricia Hollingsworth, the widow of the deceased, on behalf of the deceased's Estate. She has requested that the Court issue a decision on the papers, and that situation has been agreed to by Mr D Tui, Counsel for the Respondent. The Court has received submissions from both parties relating to this appeal. [2] This appeal arises from a review decision dated 21 February 2011, whereby the Reviewer considered two separate applications for review which had been lodged on the deceased's behalf relating to applications for lump sum compensation. [3] The relevant background facts may be stated as follows: The deceased had been employed by the Lake District Health Board as a carpenter and had been so from 1986 down to July 2007. The deceased died on 23 July 2007 and it was identified that the cause of death had been due to asbestos exposure in the course of his employment. 2 Subsequent to the deceased's death an application for cover was lodged for a work related personal injury and cover was granted by the respondent on 9 January 2008. On 15 January 2008 an application was made on the deceased's behalf for lump sum compensation in relation to the covered injury. By decision dated 8 February 2008 the respondent advised that the deceased had no entitlement to lump sum compensation, as the claim for same had been lodged after his death, and as a consequence Clause 54(1) of Schedule 1 to the Act determined that no claim could be had unless the claimant was alive and able to be assessed. An application for review of that decision was lodged on 22 February 2008, and subsequent to that application the Corporation and representatives of the deceased undertook mediation and at that time the deceased was represented by John Miller Law. For reasons that have not been made clear, but no doubt Clause 54(1) of the Act had relevance, the application for review was withdrawn. It is the case that no lump sum compensation had been paid by the Corporation at that time. On 13 October 2009 representatives of the deceased lodged a second application for lump sum compensation, and by decision dated 23 October 2009, the respondent again declined that claim. The same reasons for declining that application, which had earlier been given in February 2008, were advised in the decision. Although the respondent's decision was dated 23 October 2009 an application for review of same was not lodged on the deceased's behalf until 2 June 2010. The Corporation sought reasons for the late lodging of the application for review, and the deceased's wife responded to same on 21 June 2010. 3 By decision dated 7 July 2010, the respondent advised that it could not accept the late application for review, it considering that there were no circumstances which had prevented the lodging of the review within the three month period, that is, it did not accept that there were any extenuating circumstances. By letter dated 17 November 2010, a claim for review of that July 2010 decision was lodged, it also being a claim lodged outside the three month statutory period. The review hearing took place on 17 February 2011, at which Mrs Hollingsworth appeared on behalf of the deceased. In a review decision dated 21 February 2011, the Reviewer determined that there was no jurisdiction to review ACC's letter of 23 October 2009 relating to the second claim for lump sum compensation, as it was not a decision within the meaning of section 134(1) of the Act. The Reviewer did accept jurisdiction to consider the question of whether the late lodgement of the application for review on 17 November 2010 could be accepted by reason of extenuating circumstances. That was the extent of the review decisions which are now the subject of this appeal [4] The Court is not clear on precisely what it is that representatives of the deceased are seeking to achieve by this appeal, but presumably it is their desire that the substantive issue of whether the deceased does have an entitlement to lump sum compensation can be considered. [5] From the background evidence, it is clear that the respondent declined the first application for same on the basis that it did not comply with the statutory requirements for such an entitlement, and the evidence is that a second application for lump sum compensation which was made in October 2009 was merely seeking the same entitlement that had been declined in that earlier decision of the respondent. [6] Whilst it is the case that representatives of the deceased delayed the lodging of applications for review of the two primary decisions of the respondent which post-dated the second application for lump sum entitlement, the matter has not progressed upon the substantive issue because of those failures to observe the statutory time limits. [7] The fact of the matter is that the claimants are still two steps away from having that substantive issue of lump sum compensation determined, as the only positive decision made by the Reviewer was to accept that there were likely to have been extenuating circumstances which would allow for the late filing of the application to review the Corporation's decision of 7 July 2010, determining that there were no extenuating circumstances enabling the late application to review the Corporation's letter of 23 October 2009. [8] I propose to make a final determination on the substantive issue which is what is being sought by the deceased's representatives and that issue is whether the deceased has an entitlement to lump sum compensation under the Act in respect of his covered personal injury. [9] This issue has already been the subject of decisions from the respondent and the Reviewer, and I can only confirm the correctness of those decisions, having regard to the statutory provision which governs the granting of lump sum compensation to a claimant. It is the case that Clause 54(1)(b)(ii) is the applicable provision, and it states that a claimant is entitled to receive lump sum compensation if the claimant is alive when assessed under Clause 59 and is assessed as having a Whole Person Impairment of 10% or more. 10] In the case of the deceased, he was of course deceased before there was even a grant of cover for his personal injury, and therefore it is the case as a matter of law that there can be no entitlement to lump sum compensation as no assessment of impairment could be had, and that I rule is the end of the matter. Representatives of the deceased are totally misguided in thinking that there may be an entitlement to lump sum compensation for the injury suffered by the deceased, and I trust that this decision finally clarifies the matter. This appeal is dismissed. DATED this 18th day of October 2012 M J Beattie District Court Judge