TLP v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. 124 /2007 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 TLP (Al Nos. 492/06, 493/06, 495/06 and 497/06) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at ROTORUA on 23 May 2007 APPEARANCES Mrs A Stewart and Mr T Carlysle, Advocates for Appellant. Mr A D Barnett, Counsel for Respondent. RESERVED DECISION OF JUDGE M J BEATTIE [1] This decision is by way of tidying up four appeals lodged by the appellant and which appeals were wholly ill-conceived and where the respective Review Decisions had determined that there was no jurisdiction to consider the issue raised by the appellant, either because it did not involve a decision within the meaning of the Act, or that the matter which had been raised by the appellant had been attended to by the respondent, so that no live issue was outstanding. [2] I propose to deal briefly with each appeal in turn and I indicate that I am grateful for the helpful submissions of Mr Barnett for the respondent which were presented in respect of each of them. Appeal No. Al 492/06 [3] This is an appeal from a Review Decision dated 14 November 2006 (Review No.48513) where the decision of the Reviewer was that there was no jurisdiction to consider the matter raised in the Application for Review. The Reviewer found that there was no decision within the meaning of the Act, which the appellant had sought to review. The Reviewer was correct to decline jurisdiction; there was no appealable issue raised by the appellant. The Review Decision is confirmed and the appeal is dismissed. Appeal No. Al 493/06 [4] This was an appeal from a Review Decision dated 14 November 2006, (Review No.48512). The review purportedly related to the payment of counselling fees for Fiona- Anne Malcolm, Clinical Psychologist, amounting to $125.00. The Reviewer declined jurisdiction to consider the matter on the basis that those counselling fees had been paid. The Reviewer also determined that there had been no delay in making payment. [5] The evidence was that the counselling fees of Ms Malcolm had been paid on 17 March 2006 and in those circumstances the Reviewer was right to decline jurisdiction. Consequently this appeal was ill-conceived and is dismissed. Appeal No. Al 495/06 [6] This appeal arises from a Review Decision dated 14 November 2006 (Review No.48459) where again the decision of the Reviewer was to decline jurisdiction on the grounds that the Application for Review had failed to identify a reviewable decision. In his decision, the Reviewer found that the matters raised by the appellant had in fact been the subject of earlier review decisions and that she had not identified a reviewable decision. For this reason he declined jurisdiction and dismissed the application. [7] Mr Barnett for the Respondent sought to make some sense of this appeal and his submissions stated, inter alia, as follows: "If the review application is to be comprehensible, it seems to be saying that on 6 June 2002 Ms [TLP] applied to have Fiona Malcolm appointed as her psychologist and that no decision had been made by the Corporation on that application. It is then asserted that in failing to make a decision, there was an unreasonable delay on the part of the Corporation in processing the application — hence reliance on Section 134(1)(b). It is apparent that the Corporation has approved of Fiona Malcolm to undertake counselling and/or assist in the development of an IRP. That is evident on the face of the review application itself which refers to Fiona Malcolm attending a case conference at Rotorua with the ACC and others. Accordingly, on the face of it, a decision has been made so no question of unreasonable delay arises and the review application is misconceived. Further, it is noted that the review application seeks as a remedy that Ms Malcolm's "account to be paid by ACC". No account from Fiona Malcolm is identified. As a matter of fact the Corporation has paid several invoices from Ms Malcolm over the years and in respect of Ms TLPs' covered injuries, but if there is an account which the Corporation has refused to pay, then that refusal would be the subject of a separate reviewable decision. As to the payment of Anne Stewart for advocacy work, that is not something within the scope of the letter of 6 June 2002 which seemingly the appellant relies on as being the applied for entitlement which the Corporation has allegedly failed to process." [8] The Court has not been given any information or submissions which would indicate that any contrary view could be had from this particular appeal. Accordingly I endorse the Review Decision and this appeal is dismissed. Appeal No. Al 497/06 [9] This appeal arises from another Review Decision given on 14 November 2006, Review No. 48411. [10] In the Notice of Appeal the appellant stated that the decision appealed against does not address the subject of the application, which is reimbursement for wrist splints. [11] The Reviewer noted that the issue of funding for wrist splints had already been determined in a Review Decision dated 16 January 2004. That decision determined that the cost of those wrist splints could not be paid by the respondent because the requirements for same had not been met, namely that they had not been prescribed by a specialist, but rather by a physiotherapist. [12] The Reviewer noted that the appellant sought to revisit that earlier decision and he determined that the issue was res judicata and that he had no jurisdiction to open the substantive issue regarding the provision of wrist splints. [13] I concur with the Reviewer's decision that it was not open for the Reviewer, nor this Court on appeal, to re-open an issue that had already been determined and by which decision the appellant was bound by virtue of Section 147(1)(a) of the Act. [14] Accordingly, this appeal from that Review Decision is dismissed. [15] It is the case, therefore, that all four above appeals are dismissed and I simply observe that those dismissals have not affected any substantive right to entitlements of the appellant. DATED at AUCKLAND this 18t h of June 2007 M J Beattie District Court Judge