Reihana v Accident Rehabilitation and Compensation Insurance Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 129 /99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to section 91 of the Act BETWEEN TONI COLIN REIHANA of Christchurch Appellant (Appeal No. DCA 37/99) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent HEARING at CHRISTCHURCH on the 10th day of May 1999 APPEARANCE/COUNSEL Appellant in person A D Barnett for respondent RESERVED JUDGMENT OF JUDGE A W MIDDLETON The issue in this appeal is whether the review officer was correct to decline jurisdiction to consider the appellant's entitlement to assistance with university studies. The appeal arose out of a decision issued by the respondent on 1 September 1998. The appellant was granted cover in respect of injuries sustained in a forklift accident in 1993. He received weekly compensation for a period and on 6 March 1996 signed an individual rehabilitation programme under which it was agreed that the 2 respondent would pay for the appellant's attendance for one year's study at Canterbury University where he was to take the first year courses for law, history and Maori. The programme noted that the immediate goals, in addition to the course of study at Canterbury University, were that the appellant would: "(a) continue to work in a voluntary capacity until end 1996; and (6 ) at end of 1996, January 1997, secure employment." Under the heading of "steps/action" it was noted "at conclusion 1996 Toni to be offered full-time employment at successful completion of his studies". A letter on the file from the appellant's uncle, Mr Beresford Davis, which is dated 5 March 1996 and is on the letterhead of Moriori Tchakat Henu Association of Rekohu Inc, indicates that on completion of the university course the appellant would be given employment by that body. A file note made by the appellant's case manager on 6 March 1996 indicates that in a discussion with Mr Davis he had been assured that once the appellant was recognised as being fluent in Maori and understood some law and history this would be sufficient to qualify him for the proposed position with the uncle's incorporation. In January 1997 the appellant requested the respondent to provide further funds to enable him to complete a law degree, but after consideration of his academic record and alternative employment options the appellant was notified on 2 February 1997 that the application was declined. The appellant applied for a review of that decision. Prior to the review hearing the respondent suggested the development of a revised rehabilitation plan but these overtures were declined by the appellant because he considered the respondent should continue to fund his university studies. On 5 March 1997 the respondent cancelled the appellant's weekly compensation pursuant to s.73(2) on the grounds that he had unreasonably failed to agree to a rehabilitation programme. In the result, the appellant continued to attend university at his own expense for the 1997 year during which time he was able to obtain a student allowance. On 10 November 1997 the appellant notified the respondent that as the academic year was completed he was in a position to enter into a rehabilitation plan. In addition he requested reinstatement of weekly compensation. The respondent's initial response was to decline the request to reinstate weekly compensation but ultimately reconsidered that decision and reinstated weekly compensation from the date upon which the appellant had agreed to re-enter negotiations for an individual rehabilitation plan. The negotiations in respect of the proposed plan were unsuccessful because the appellant was adamant that the option he preferred was a continuation of his university study while the respondent took the view that its decision not to extend the grant for university study was correct. The appellant applied for a review of that decision. 3 On 1 September 1998 the appellant's case manager notified the appellant that further entitlements would be withheld until the appellant agreed upon a plan relevant to his rehabilitation. The appellant lodged an application for review of that decision. In that application the appellant stated that the result he sought was "payment of study costs for 1998". On 29 October 1998 the appellant's case manager again wrote to the appellant referring to the fact that negotiations with the appellant towards the completion of an individual rehabilitation programme had been unsuccessful, mainly because of the appellant's decision not to accept the proposals put to him by the respondent. The letter then stated: "It has been arranged for you to continue to receive weekly compensation until the date of a meeting on 6 November 1998. Accordingly I am revising the decision of 1 September 1998 under s.67(a) of the ARCI Act 1992 to decline to pay entitlements from 28 September 1998." The letter indicated that the appellant was required to attend the meeting on 6 November 1998 to consider an individual rehabilitation plan. Three matters were the subject of review hearings on 1 December 1998. One of the issues- was the decision of the respondent made on 2 February 1997 not to fund further university study. Another review hearing involved the decision of 1 September 1998 withholding further entitlements which is the decision of which is now the subject of this appeal. In his decision in respect of that issue the review officer noted that the appellant did not contest the withholding of weekly compensation and other entitlements, a decision which had been revised and amended by the respondent in both the decision of 1 September 1998 and 29 October 1998. The review officer noted that the decision of 1 September 1998 had been amended by reinstatement so that there was no issue on review in respect of that matter. He noted also that the question of funding the appellant's university course was the subject of a different review decision which had been heard at the same time as the matter now before the Court. The review officer concluded that he therefore had no jurisdiction to reconsider that issue in the context of that review hearing. At the hearing of the appeal the appellant submitted that the review officer erred in failing to "reinstate the strict liability that is automatically attached to any wrong decision Accident Compensation Corporation make and then retract reciprocal penalising". He submitted further that as a consequence of the decision of the review officer not to recognise the strict liability element incorrect provisions of the Act had been applied, particularly the "obligatory" sections. He submitted further that as from November 1997 he had advised the respondent that he was available and prepared to fully comply with whatever the respondent intended to require from him. He submitted that he recognised that at that stage university rehabilitation was not an option available to him because the respondent had suspended entitlement in March 1997 through to November 1997 which was a wrong decision which it subsequently withdrew. He considered that he was therefore entitled to the provision of costs for university education in 1998. 4 Mr Barnett submitted that the review officer was correct to decline jurisdiction in respect of the decision regarding funding for further university study which was the subject of a separate review application. Mr Barnett submitted that following the decision in respect of university study made on 2 February 1997 the fact that the case manager had noted on 1 September 1998 that "the Corporation does not consider that it can support further tertiary education at Canterbury University in a law degree" and further the statement, "the Corporation considers that your submission is unreasonable as this prevents the Corporation from supporting your return to independence in a 'appropriate' and 'cost effective manner'," did not constitute a new decision which carried with it a right of review, but was merely a declaration of the respondent's earlier statement. He further submitted that as the review officer had already considered the question of university funding in the context of a separate review hearing, there was no jurisdiction for him to reconsider the matter. I had some difficulty in understanding the approach adopted by the appellant in his submissions. I agree with the submissions of Mr Barnett that the question of university funding which was the object anticipated by the appellant in his application for review was a matter for which he had applied for a separate review hearing which had been completed by the review officer. I consider therefore that both principles of law submitted by Mr Barnett were correct, namely that the review officer had no jurisdiction to consider the question of university funding in the context of a review of the respondent's decision on 1 September 1998 and secondly that the review officer was correct to decline jurisdiction because the issue in question had already been decided at a separate review hearing. The appeal is dismissed. DATED at WELLINGTON this 21 - day of May 1999 bueunddeton A W Middleton District Court Judge dca3799.doc(rd)