Estate of Wilfred Hughes v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WHANGARE Decision No 108/ 2009 UNDER The Injury Prevention, Rehabilitation, and Compensation Act 2001 IN THE MATTER of an appeal pursuant to section 149 of the Act BETWEEN THE ESTATE OF WILFRED HUGHES Appellant (AI No. 342/08) AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at WHANGAREI on 15 April 2009 APPEARANCES Ms J Brock, Advocate for Appellant. Mr D Tui for Respondent RESERVED DECISION OF JUDGE J CADENHEAD THE ISSUE [1] At issue is a decision by the Accident Compensation Corporation ("the Corporation") dated 29 April 2008 declining an application by the late Wilfred Hughes for lump sum compensation. [2] The application was declined on the basis that Mr Hughes had not been assessed prior to passing away, and therefore payment was not permissible under the ACC legislation. [3] The appellant is critical of the Corporation's conduct. The appellant suggests that any failure to arrange an assessment before Mr Hughes passed away is attributable to the Corporation. The appellant seeks payment of lump sum compensation on the basis of this alleged failure. I:JUDICIAL\CADENHA\ACC v Wilfred Hughes THE BACKGROUND OF FACTS [4] I have substantially used the background of facts provided by the respondent, as perusal of the file shows that this background is accurate and reliable. [5] In July 2005, Mr Hughes lodged a claim for cover with the Corporation for asbestosis. The Corporation investigated the same, seeking the completion of questionnaire forms by Mr Hughes and his general practitioner, Dr Jonathan Sprague. [6] Dr Sprague wrote to the Corporation on 25 July 2005 enclosing his medical notes as well as previous medical documentation. Dr Sprague advised that Mr Hughes had been diagnosed as having asbestos related lung disease and asbestosis. [7] Mr Hughes completed a Claimant Cover Questionnaire form on 31 July 2005. He stated that he had first noticed symptoms on 24 October 2004 and that he had had exposure to asbestos in his employment from 1974 to 1978. [8] The Corporation obtained advice from Dr John Monigatti regarding Mr Hughes' claim for cover. Dr Monigatti completed a memorandum on 26 August 2005 acknowledging that Mr Hughes was entitled to cover for the asbestos related condition. A decision was issued to this effect by the Corporation on 30 August 2005. [9] Thereafter Mr Hughes applied for and received a number of entitlements, including funding for equipment and ongoing home help. [10] In September 2005 Mr Hughes applied for lump sum compensation. He was examined by Dr Graham Corbett who prepared a report on 31 October 2005 assessing Mr Hughes as having a whole person impairment of 5%. [11] The assessment was peer reviewed by Dr Rob Percival and on 28 December 2005 the Corporation issued a decision declining Mr Hughes' claim for lump sum compensation on the basis that his whole person impairment fell below the requisite threshold of 10%. [12] Mr Hughes continued to receive home help assistance and funding for treatment and pharmaceutical costs. The Corporation contacted Mr Hughes and his 2 partner on a five to six weekly basis to ascertain whether Mr Hughes' needs had changed. Such contact continued throughout 2006 and 2007. [13] On 20 July 2007, Mr Hughes' partner, Phillipa White, contacted the Corporation to enquire about a reassessment of Mr Hughes' lump sum compensation. The file note reads: "Phillipa White (partner) called to let me that Wilfred has gone downhill and can they have a lump sum reassessment. I said would arrange for application pack to be sent out to. I said that if he has gone downhill that he should go back to his GP as well so he can be reviewed or referred to his specialist if necessary for a check up. I Phillipa did they require any more home help etc at this stage. Phillipa said they were fine at present. I said to Phillipa, any further questions to please give me a call. " [14] An application for reassessment of lump sum compensation was not subsequently forthcoming. [15] Nevertheless, the Corporation continued to make five to six weekly contact with Mr Hughes and Ms White to ascertain whether there was any change to Mr Hughes' circumstances or needs. Such a phone call was made on 16 August 2007. The file note reads: "Phoned Wilf to see how he was going. He said his breathing has slowed up a bit and he has had more chest infections. I asked Wilf did he require any further assistance at present, he said he was fine. I said if he did, to call me any time otherwise I would call him in another six weeks." [16] Similar contact was made on 27 September 2007, 8 November 2007 and 27 December 2007. On each occasion, the Corporation was advised that no additional assistance was required at that time. [17] The next relevant development appears to have occurred on 13 February 2008. Ms White contacted the Corporation to advise that Mr Hughes was deteriorating. The file note reads: "Phillipa (partner) called and wanted to let me know that Wilf was going downhill, he is still working full time, discussed options they he would cut his hours ACC can top him up, would need a medical certificate from GP. Phillipa is concerned that he may need to give up work, she said that Wilf still wants to work. Discussed with Phillipa increase of home help and other care we can look at this any time has a specialist appointment asked for a copy of this report once seen. I have told Phillipa to call me any time. Discussed with Phillipa about extending the current hours. They are to expire on 16/3, Phillipa felt the current hours were still okay, I said would extend out." 3 [18] Ms White contacted the Corporation on 3 March 2008 to advise that Mr Hughes was likely to give up work soon because of his condition. [19] Mr Hughes' partner again contacted the Corporation on 18 March 2008. The file note reads: "Phillipa (partner) phoned and said Wilfred not in a good way, they have now found a new GP, Dr Geoff Callaghan (sic), Bush Road Medical Centre. Wilf has been back to the hospital and had a biopsy, then think he has developed another condition? Phillipa said that Wilf is going to put on a benefit. Discussed loss of wages with Phillipa. She will get a medical certificate and sent in to me, I said once received would call her back. She said Wilf's employer is coming around to pick up his work truck this afternoon, she said they have supported him very well. I discussed with her about a home help etc referral, she thought leave it for a few weeks. " [20] Mr Hughes was certified unfit to work from 17 March 2008. There followed, on or about 26 March 2008, an application for weekly compensation, the same being paid on 27 March 2008. [21] On 27 March 2008, Mr Hughes' new general practitioner, Dr Cunningham, contacted the Corporation to discuss Mr Hughes' condition. The file note reads: "Dr Cunningham, GP called to discuss Wilf. He said has now been diagnosed with lung cancer now and he needs palliative care and oxygen. I said ACC can assist with this and I have just sent an assessor out yesterday. I asked Dr Cunningham to lodge a new claim for lung cancer for Wilf and this can bring other entitlements, he will complete an ACC45 and fax to me. Dr Cunningham said that Wilf and Phillipa have nothing but praise for the help ACC has provided. I asked Dr Cunningham to keep in contact with ACC regarding care we can provide for Wilf." [22] Dr Cunningham completed a claim for cover and lodged the same with the Corporation on 31 March 2008. A subsequent medical certificate by Dr Cunningham dated 1 April 2008 identified Mr Hughes' condition as lung cancer secondary to asbestosis. [23] The new claim was referred to Dr Monigatti for his advice. Dr Monigatti advised: "Thank you for referring this claim for asbestos related disease. Mr Hughes, formerly a builder, has cover for pleural plaque and asbestosis. Recently, imaging revealed multiple lung opacities with the appearance of metastic military carcinomatosis (cancerous deposits spread by the lymphatic's blood). Histology of tissue biopsy specimens revealed adenocarcinoma. It is possible that the tumour originated elsewhere in the body but the distribution in the lungs is suggestive of primary (i.e. lung) adenocarcinoma. All histological sub-types of lung cancer are more common in workers who have been in contact 4 with asbestosis. Typically, asbestos induced cancers have very long latency periods, in the order of 20-50 years. Smoking is an added risk factor. Lung cancer secondary to asbestos exposure is listed in schedule 2 of the Act. ACC must award cover unless it can show that the condition arose from either non-work or overseas exposure to asbestos or was caused by something else. The timeframe would fit with work causation and there is nothing to indicate that Mr Hughes' non- : . . ... work. activities exposed him to asbestos to an extent likely to have caused lung cancer in its own right. It is possible that the past smoking was causative but there is not enough evidence to show that it is likely. The claim was acceptable, therefore. " [24] In early April 2008, Mr Hughes completed an application for lump sum/independence allowance form. Medical certificates in support were completed by Dr Cunningham. The same were received by the Corporation on 8 April 2008. [25] On 15 April 2008 Ms White contacted the Corporation in relation to Mr Hughes' medical treatment. The file note reads: "Phillipa called and said that Wilf saw the oncologist on the 11/4 and he is going on a new chemo trial starting soon. Also, Phillipa would like some of the equipment picked up as they aren't using this at all (walking frame, shower stool, and home oxygen refill system). I said would arrange for this to be picked up. Phillipa asked if she could be paid for Wilf's personal care as she is helping every day now, I said would arrange for the assessor to contact her and/or come out and see them again." [26] There was further contact between the Corporation and Ms White on 18 April 2008 in relation to the uplifting of the equipment. There does not appear to have been any indication over this period, from either Mr Hughes or his family, that Mr Hughes was near death. [27] On 21 April 2008 cover was granted for the lung cancer. The Corporation does not appear to have been aware at this time that Mr Hughes had passed away. [28] On 23 April 2008, the Corporation wrote to Mr Hughes to advise that it would arrange for an assessment of his whole person impairment in relation to his claim for lump sum compensation. [29] On 24 April 2008 the Corporation became aware that Mr Hughes' had passed away. On the same day, a Corporation officer spoke with Ms White. The file note reads: "Message to call Phillipa, phoned her and passed on my condolences to her and family, she said he passed away peacefully Sunday morning. Phillipa said they only had the funeral yesterday and this is the first chance she has had to call me. I discussed with her about a funeral and survivors grant and our Accidental Death Unit would consider these and that Wilf's weekly compensation would be stopped on 21/4/2008. I said I have emailed the equipment people to come and pick all this up. Phillipa thanked me very much for all my help I have provided for Wilf's care. I said to Phillipa if she has any further questions to call me any time." [30] On 24 April 2008 the Corporation wrote to Ms White to offer its condolences and to provide information in relation to entitlements for death. [31] On 29 April 2008 the Corporation wrote to Ms White to advise that the Estate was not entitled to payment of lump sum compensation as Mr Hughes had not been assessed. THE REVIEW HEARING [32] A review hearing was conducted on 14 August 2008. The reviewer issued a decision on 2 September 2008 dismissing the review. The reviewer stated that the Corporation ought to have treated the claim for lung cancer on the same claim as the asbestosis claim. Notwithstanding, the reviewer determined, in line with the decision of Estate of Puddle (188/07), that lump sum compensation was not payable in the absence of an assessment. [33] A notice of appeal was lodged on or about 15 September 2008. LEGISLATION [34] The lump sum compensation provisions are found at Part 3 of Schedule 1 to the Injury Prevention, Rehabilitation, & Compensation Act 2001 ("the 2001 Act"). [35] Clause 54(1) reads: " (1) 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 (6) the claimant - i) has survived the personal injury for not less than 28 days; and (ii) is alive when assessed under clause 59; and 6 (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. " [36] Clause 56 deals with the monetary sums payable to claimants for lump sum compensation. [37] Clause 57 provides that an assessment must not be undertaken until the Corporation has received a certificate from a registered medical practitioner indicating that the claimant's condition has stabilised and that there is permanent impairment resulting from the personal injury. An assessment can be undertaken, however, where the condition has not stabilised so long as two years has passed since the date of the personal injury. [38] Clause 58 provides that the Corporation must appoint assessors to do assessments under clause 59. [39] Clause 59 provides the process by which an assessment must be undertaken. An assessor is required to conduct the assessment and assess that claimant's percentage of whole person impairment in accordance with regulations made under the Act. [40] Clause 61 provides for reassessments of a claimant's whole person impairment. [41] Finally, cl 62 provides: If a claimant dies after the completion of the assessment of their degree of. permanent impairment but before payment of the lump sum, the Corporation is liable to pay the lump sum to the deceased's claimant's estate. " [42] Accordingly, a claimant is not entitled to lump sum compensation unless, that claimant has, inter alia, survived the personal injury for not less than 28 days and is alive when assessed under clause 59. Payment of lump sum compensation may still be made where the claimant dies after an assessment but before payment is made. THE SUBMISSION OF THE RESPONDENT [43] On 8 April 2008, the Corporation received Mr Hughes' application for lump sum compensation together with the medical certificates. Mr Hughes applied for an assessment and a reassessment. Two separate medical certificates were prepared by Dr Cunningham. [44] Immediately following the grant of cover for the lung cancer, on 21 April 2008, the Corporation wrote to Mr Hughes to make arrangement for the assessment of his lump sum compensation. Regrettably, by this time Mr Hughes had passed away. [45] As Mr Hughes had passed away before any assessment could be undertaken, he was not entitled to lump sum compensation. The legislation is clear in this regard. There is no discretion available to avoid the clear effect and wording of the lump sum compensation provisions. [46] The provisions were considered by the District Court in Estate of Puddle, Decision No. 188/2007. In that case, Mr Puddle has died prior to the lodgement of the claim for cover and the application for lump sum compensation. Cover was granted for mesothelioma. Counsel for the estate argued that a purposive approach to the legislation permitted the payment of lump sum compensation. Ongley DCJ held, inter alia: "[36] To adopt a purposive construction would require such strain to the natural meaning of cl 54 that the exercise could not possibly be justified. I accept Mr Barnett's submission that the purpose is to be found in s3 and in clause 54 without recourse to general purposes of compensation. Section 3 has a purpose of lump sum compensation during rehabilitation and cl 54 has a purpose of payment to persons who survive for a stipulated period after the personal injury. Clause 56 enables calculation of an amount pursuant to regulations under the Act and cl 62 extends the entitlement to payment to the deceased person's estate if the provisions in cl 54 are met. [37] These provisions are self contained and a payment to the appellant's estate when he was not assessed before his death is not a payment provided by the legislation. The legislation does not contain discretions as to payment or part payment in cases of early death or delays in assessment ... [47] The above approach (to statutory construction) taken in Estate of Puddle is consistent with the decision by the High Court in Accident Rehabilitation & Compensation Insurance Corporation v Tarr [1996] 2 NZLR 715; ie a plain reading of the legislation cannot be ignored simply because of actual or perceived unfairness in the scheme. The Full Court of the High Court held at page 721: "...It is not for the Courts to resolve problems or injustices which flow from the plain language of the legislation. It is for the legislature, if it sees fit, to amend the legislation so that it achieves the results desired by the legislature." THE SUBMISSION OF THE APPELLANT [48] An exception is available to the Corporation (and the Court) to avoid the plain wording of cl 54. The Corporation's conduct has been unsatisfactory. The Corporation had a duty to act in a reasonable and timely manner to issue its decision and failed to do so. Such failures included: [a] Requiring Mr Hughes to lodge a new claim for the lung cancer. [b] Failing to act in an expeditious manner [49] However there is no provision under the ACC legislation permitting any exceptions to the criteria under cl 54(1). A claimant is required to be alive when assessed 50] In reality the submission of the appellant was based on the deterioration of the appellant and the failure of the appellant to monitor his claim leading to the late claim and the assessment taking part after his death. I do not think that I can do any thing under this head of claim. However, the respondent could consider all the facts in exercising its discretion to make an ex gratia payment. I make no comment one way or the other in respect to that type of claim. I do say, however, that I have considerable sympathy for the claim of the appellant. DECISION [51] In 2006 and 2007 the Corporation acted in a proactive manner to ensure that Mr Hughes was routinely contacted to ascertain whether he had any needs or whether his circumstances had changed. Phone contact was made regularly on a five to six week basis over this two year period. [52] In July 2007 Mr Hughes' partner indicated an intention to apply for a reassessment of lump sum compensation. An application pack was sent out but no further communication regarding this matter was subsequently received from Mr Hughes or his partner. [53] From February 2008 Mr Hughes was described as "going down hill'. Nevertheless, Mr Hughes continued to work full time until on or about 17 March 9 2008. On 18 March 2008, Ms White indicated that Mr Hughes was being treated by a new general practitioner and that recent medical assessments indicated that Mr Hughes had developed another condition. This communication was followed up with advice from Dr Cunningham, on 27 March 2008, that Mr Hughes "has now been diagnosed with lung cancer". Dr Cunningham was asked to lodge a new claim for the lung cancer with the Corporation. The same was lodged at the end of March. [54] The claim for cover for lung cancer was treated as a new claim for cover. The reviewer was critical of this course and considered that the matter should have been considered under the asbestosis claim. Irrespective whether the matter should have been considered under the same claim or under a separate claim, the Corporation was still required to consider and determine whether the lung cancer was covered, albeit as a flow-on consequence from the covered asbestosis condition or a separate condition also arising from the asbestos exposure in the 1970's. Until the Corporation received sufficient evidence to show a nexus between the asbestosis and the lung cancer, Mr Hughes was not entitled to any compensation for the lung cancer. [55] The time between receipt of the claim for cover for the lung cancer and the Corporation granting cover was only a matter of three weeks - this is not an excessive or unreasonable delay. [56] Shortly after the claim for cover for the lung cancer was lodged, Mr Hughes made an application for lump sum compensation (i.e. on 8 April 2008). This application was received by the Corporation only 12 days before Mr Hughes passed away. [57] There was no indication on the application or from subsequent discussions with Ms White that Mr Hughes' death was imminent. The Corporation was aware that Mr Hughes was undergoing chemotherapy but there was no suggestion that his condition was critical at this time. [58] The Corporation is required under s 54 of the 2001 Act to issue reasonable decisions in a timely manner. There were no unreasonable delays here. There was no indication provided to the Corporation that the lump sum assessment ought to be expedited due to Mr Hughes' condition. 10 [59] I have great sympathy for the appellant's claim, however the wording of the statute is that a claim can only be allowed if the claimant had been assessed before his death and this did not happen here. The decision of Estate of Puddle (supra) sets out the matters clearly and that compensation as sought here cannot be claimed until the claimant had been assessed before his death for this type of compensation. I set out paragraph 37 of that decision as follows: [37] Those provisions are self contained and a payment to the appellant's estate when he was not assessed before his death is not a payment provided by the legislation. The legislation does not contain discretions as to payment or part payment in cases of early death or delays in assessment. It is understood that the Corporation may make ex gratia payments outside these provisions in some cases where it is at fault in causing a delay in assessment, but this set of provisions suggests that the legislation follows a policy of certainty, rather than conferring a discretion. That is achieved by the use of mandatory conditions of entitlement with possibly arbitrary cut-off dates. The Act contains other provisions in which there is no discretionary relief for unfortunate cases, for example the weekly compensation earnings assessment provisions. Mr Barnett cited Tarr v ARCIC as a judgment in which the High Court refused to remedy an unjust result by adopting a purposive departure from the literal meaning of mandatory provisions." 60] It is not for me to recommend ex gratia payments, however, it seems to me that the Corporation could not be criticised if one was made. [61] The appeal fails for the reasons that I have given. There is no order as to costs. DATED this 16 th day of June 2009 J Cadenhead District Court Judge