TLB v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT Decision No. 7 7 /96 HELD AT HAMILTON IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 19/ 96 5418 1992 AND IN THE MATTER of an Appeal pursuant to Section 91 of the Act BETWEEN TLB Appellant (Appeal No. DCA $75/96) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARD on the 19th day of August 1996 NAME OF APPELLANT NOT TO BE PUBLISHED APPEARANCES Appellant present with Dr Revell T P Cleary for respondent DECISION OF JUDGE D A ONGLEY The issue in this appeal concerns the date of incapacity in the case of a sexual assault where the claimant did not immediately seek medical treatment. There is a difficulty in the Accident Rehabilitation and Compensation Insurance Act 1992 caused by s 63 which prescribes the limitation period for lodging a claim for cover. As originally enacted, s 63(2) prevented any claim in respect of personal injury unless it was lodged within 12 months of the date on which the personal injury was suffered. Subsection 3 stated: "(3) For the purposes of this section, where a claim involves ... conduct of a kind described in section 8(3) of this Act, the personal injury shall be deemed to - 2 - have been suffered on the date on which the person first received treatment for that personal injury as that personal injury, being treatment of a kind for which the Corporation is required or permitted to make payments ..." The evident purpose of subs (3) was to ameliorate the operation of subs (2) which required claims for cover to be made within 12 months after the date on which personal injury was suffered. Claims under s 8(3) are those for personal injury, that is mental or nervous shock suffered by a person as an outcome of sexual assault of categories described in the Crimes Act and listed in the schedule of the Act. Persons suffering injury under s 8(3) who did not lodge a claim within 12 months of the date of personal injury could still obtain entitlements under the Act if the claim was lodged within 12 months after the date on which the person first received treatment. It may be noted that the need for subs (3) was considerably diminished by the enactment of subs 2(A) which provided that the 12 month time limit may be exceeded if the Corporation is of the opinion that it has not been prejudiced in determining cover or payments in respect of the personal injury. In this case there is a collision between s 63(3) of the Act and s 40. Section 40 excludes pre-accident earnings for calculation of earnings related compensation where the employee was not an earner immediately before commencement of incapacity. The appellant was not an earner immediately before her first date of treatment, which is the deemed date of personal injury. The chronology of events was as follows: 27 January 1995 Sexual assault involving rape and sodomy. 24 March 1995 Claimant consulted Health Waikato Sexual Health Service for treatment. She was seen for a routine screen with complaints of lower abdominal pain, urinary frequency and break-through bleeding with discharge from the cervix and right lower quadrant tenderness. Antibiotic treatment was commenced and subsequently tests showed the claimant to be chlamydia positive. During 1995 The appellant's parents became concerned about her continuing medical problems and she disclosed what had happened to her. 21 September 1995 The appellant consulted Dr Revell who prescribed antibiotics, believing in a recurrence of chlamydia. October 1995 Appellant disclosed sexual assault to Dr Revell. Those were the broad facts known to the review officer who reached a conclusion that the deemed date of personal injury could not be earlier than 24th March 1995. The appellant had stopped work in January 1995 so that she was not an earner at the deemed date of personal injury in March. She could not bring her case within s 44 of the Act which alleviates that difficulty for a person who was an employee within 14 days before the commencement of incapacity. The review officer therefore - 3 . confirmed the Corporation's decision declining the claim for earnings-related compensation. Before dealing with this appeal, it is noted that there is room for interpretation of the Act to allow entitlement for earnings-related compensation in cases of emotional trauma where the first date of treatment is after 14 days from the date of incapacity. There are two possible avenues for a construction favourable to an appellant. The first is the possibility that s 63(3) does not establish a date of personal injury for all purposes, but only for the limited purposes of the section, that is to say for establishing whether a claim is lodged in time. It is possible that the introductory words "For the purposes of this section" could lead to such a construction. In that event, once a decision was made whether to admit a claim according to the requirements of s 63, then the constrictions of that section could be put aside for the purposes of deciding entitlements to specific kinds of payments. The date when incapacity did in fact occur could then be established in order to deal with a claim for earnings related compensation. It is interesting to compare s 7 relating to the deemed date for personal injury caused by gradual process, disease, or infection arising in the course of employment. In those cases, the deemed date is the earlier of the date of incapacity or the date of treatment under s 7(5). Such a formula would have avoided injustice in the present case. The second possible avenue for a favourable statutory interpretation is that the date of incapacity could be regarded independently of the deemed date of personal injury, so that once the injury date was established then the incapacity date could be looked at separately for the purpose of qualifying for earnings-related compensation. While it is logically inconsistent for incapacity to occur before the date of personal injury, where the expressions have technical meanings as they do in the Act such an interpretation may be open. In this appeal it is not necessary to consider those aspects of statutory construction any further because there is a factual consideration that was not given due weight by the Corporation. It is obvious that this was a violent assault involving immediate physical consequences and the likelihood of immediate incapacity. Representations from Dr Revell on the hearing of the appeal confirmed that was in fact the case. Dr Revell's history of the appellant was that she suffered bleeding from the rectum for a number of days following the injury and suffered abdominal pain for at least three weeks after the injury following which she went to the STD Clinic. In his view her symptoms were consistent with continuing incapacity until she consulted him and until December 1995 when she became pregnant. By that time it was clear that the chlamydia infection had abated. It was necessary to consider whether the claim should be referred back to the Corporation to consider that evidence, however, I think that would be grossly unfair to the appellant and, as the general circumstances have been known throughout, it is appropriate for the Court to review the facts on appeal. On the hearing of the appeal I considered that it would be unfair to the appellant to require her to give any complete account of her ordeal. There was, however, one area which required elucidation because of an ambiguous note of her evidence before the review officer. She affirmed on the appeal that on the Monday following the attack she had gone to work and remained for a few hours. She said that she told her employer what had happened but she was not given any assistance. She had to spend most of the day in the toilet. She then tried to work for a few hours each day but she could not do so and was obliged to hand in her resignation. A retrospective judgment of incapacity must be treated with care because the Corporation is deprived of reliable contemporary medical information which it can usually expect. However in this case the facts are now not in dispute and I am satisfied as to the commencement of incapacity on the material before me. In those circumstances it is clear that this is not a case that is restricted to cover under s 8(3) of the Act for mental or nervous shock. It is clearly a case involving physical personal injury by accident followed by incapacity caused by that physical injury. It is different from a physical injury followed by incapacity attributable only to the mental or nervous shock attendant upon the physical injury. That is an issue that had not been adequately explored although the probability existed on the information before the Corporation. The appellant is entitled to cover on the basis that the injury and the incapacity occurred at the same time, namely 27th January 1995. It will be for the Corporation to assess entitlements to payment The appellant and her medical practitioner have presented this appeal. Dr Revell has clearly devoted more time than has been called for by the clinical requirements of the case and there should be an order for costs. The appellant will have $650 costs for her representation by Dr Revell. DATED at WELLINGTON this [2th day of September 1996 D A Ongley District Court Judge