ACCforum: Renata V Acc (170/2004) - ACCforum

Jump to content

Page 1 of 1
  • You cannot start a new topic
  • You cannot reply to this topic

Renata V Acc (170/2004) Out of time reviews

#1 User is offline   ernie 

  • Newbie
  • Pip
  • Group: Members
  • Posts: 0
  • Joined: 26-April 04

Posted 01 October 2004 - 11:24 PM

RENATA v ACCIDENT COMPENSATION CORPORATION

District Court, Wellington (170/2004)
Judge D A Ongley

APPEARANCES
D V Dixon-McIver, for Appellant
N D Lawson, for Respondent


RESERVED JUDGMENT OF JUDGE D A ONGLEY

[1]The issue in this case is whether there are extenuating circumstances within the meaning of section 135(3) of the Injury Prevention and Rehabilitation Act 2001 in order for Mr Renata to be granted leave to have a review application heard against a decision dated 8 November 2002 declining weekly compensation.

The injury

[2]The appellant sought cover for a shoulder injury on 12 June 2001. The Corporation declined the application on 23 July 2001 and the appellant lodged a review application through solicitors then acting for him on 17 August 2001. Before the review came to hearing the Corporation revoked its decision and granted cover on the basis of advice contained in a report of 11 September 2001 from Mr Simmonds, orthopaedic surgeon.

[3]Mr Simmonds described a quite severe injury five years before when a number of heavy objects fell onto Mr Renata's right shoulder causing a fracture of his malar bone. While he continued to work for some time afterwards, his disability had increased involving his acromioclavicular joint. In addition he may have had some early isolated disruption of an intervertebral disc which could easily have taken place at the time of the injury.

[4]The Corporation granted cover on 26 September 2001 and the review application was withdrawn. The Corporation required Mr Renata to provide appropriate medical certificates. He provided a retrospective medical certificate of 28 September 2001 certifying that he was unfit for work for 90 days from 20 October 2000.

[5]He applied for weekly compensation and provided details of his employers for the 52 weeks prior to the date of incapacity. On 11 October 2001 in a letter to Mr Renata's then solicitors the Corporation asked for more information to confirm eligibility for weekly compensation. The Corporation considered that at the time of first or subsequent incapacity Mr Renata was not in employment.

[6]Fourteen months later the Corporation finally issued a decision letter. Meanwhile Mr Renata said he was unable to continue paying his lawyer because he was only receiving a social welfare benefit. He says he was not advised that he could apply for legal aid. That would be unusual but in any case Mr Renata's claim is uncontradicted. He eventually went to see his local MP the Hon Trevor Mallard.

[7]After a few months Mr Renata provided a list of dates of his previous employment in February 2002. Nine months later on 8 November 2002 the respondent wrote advising Mr Renata that he was not entitled to weekly compensation and notified him of a right of review. That was the formal decision letter. Mr Renata deposed:

".. on 8 November 2002 I received a decision letter advising me that I was not entitled to weekly compensation giving the reason why I did not comply with the section of the legislation that I had failed to satisfy. I could not understand how I had failed the meet the term 'continuous' (which was not explained to me in the letter), as I had made sure that all of my earnings details had been provided to my ACC case manager.

By now I was completely frustrated and depressed about my whole situation because everything seemed to be out of control."

[8]The period of three months expired on 8 February 2003. At the end of February Mr Renata consulted Mr Dixon-McIvor, who had to make some enquiries before lodging an appeal which he did in a further 14 days. I do not think that any criticism can be made of the time taken for Mr Dixon-McIvor to file the appeal. The question concerns Mr Renata's delay, particularly from 8 November to about 27 February.

The Law

[9]The method of applying for review and the time limits are provided in s135 of the Injury Prevention, Rehabilitation, and Compensation Act 2001

135How to apply for review
(1)A review application is made by giving an application that complies with subsection (2) to the Corporation.

(2)The application must—

(f)be made within 3 months of—
(i)the date on which the claimant has a decision under section 58; or
(ii)the date on which the Corporation gives notice under section 64; or
(iii)in the case of a decision under the Code, the date on which the claimant is notified of the decision:

(g)in the case of a review application relating to a claim for entitlement, not be made less than 21 days after the date the claim for entitlement is made.

(3)Despite subsection (2)(f) and (g), the Corporation must accept a late application if satisfied that there are extenuating circumstances that affected the ability of the claimant to meet the time limits, such as—

(a)where the claimant was so affected or traumatised by the personal injury giving rise to the review that he or she was unable to consider his or her review rights; or

(b)where the claimant made reasonable arrangements to have the application made on his or her behalf by an agent of the claimant, and the agent unreasonably failed to ensure that the application was made within the required time; or

©where the Corporation failed to notify the claimant of the obligations of persons making an application.


[10]The reviewer took the view that the examples provided in the Act represent principles of:

(a)lack of capacity on the part of the applicant;
(b)unreasonable failure on the part of a duly/properly instructed agent;
©procedural failure on the part of ACC or one of its agents

[11]He considered Mr Dixon-McIver's submission that the examples in s135 are not exhaustive. He referred to the dictionary meaning of "extenuating" as equivalent to "circumstances that tend to diminish culpability" and viewed the natural meaning of extenuating circumstances as being consistent with those principles.

[12]On this appeal, Mr Dixon-McIvor referred to Queenstown Lakes District Court v Palmer (1999) 1 NZLR 549 at 555 for the principle that citizens are not to be denied access to the Courts, save in rare and appropriate circumstances, and then only by explicit statutory language. The right to have access to the review and appeal procedures is of course a very important right, but the statutory imposition of time limits is a normal restriction and there is here an exception in extenuating circumstances.

[13]The ambit of extenuating circumstances must depend on the circumstances of each case but it would be contrary to the purposes of the Act to deny access to review in a case which falls within the general scope of s135(3) even if it does not meet a more stringent approach that could be taken in extracting a principle from the examples given in the section.

[14]In the present case it was argued on Mr Renata's behalf that the letter of 8 November 2002 declining weekly compensation was understandably confusing to the appellant as it did not inform him of Corporation's reasoning in determining that he had not been continuously employed and it did not identify the period in which the Corporation considered that the appellant was not continuously employed.

[15]He was already under stress from lack of money and dependence on welfare, the impact of his injury on his daily life and the slow process of his claim for weekly earnings compensation. I accept that Mr Renata is not an educated man. He was frustrated by the complexity of the rules being applied to his case. He could not deal with the problem without professional help and he no longer had access to his former lawyer. There may be something in Mr Dixon-McIvor's submission that the intervening Christmas vacation made it more difficult for him to get advice. Early in the new year a WINZ staff member told Mr Renata of the Peoples Advocacy Society Inc. with which Mr Dixon-McIver is connected.

[16]Mr Dixon-McIvor made an interesting submission that it was reasonable for the appellant to have had the legitimate expectation on obtaining cover that there would be no difficulty in establishing entitlement to weekly compensation. It is part of the whole picture here that Mr Renata was not awake to the fact that a time limit could bar him from receiving earnings related compensation for the rest of his expected working life despite the fact that he had cover. After the Corporation had not dealt with his claim for nine months, it was not at all obvious to him that the next letter he received required a positive and prompt response to avoid losing his entitlement permanently.

[17]Clearly there are extenuating circumstances. The question is whether they are enough for s135.

[18]Section 135(3) refers to "extenuating circumstances that affected the ability of the claimant to meet the time limits". The test is not set at the sort of high level that might have been indicated if the legislation had referred to "special circumstances" or "extraordinary circumstances", to borrow descriptions from some other statutes. Extenuation might be roughly equivalent to "mitigation", an explanation that reduces culpability in some material way. It must however be something that affected the ability of the claimant to meet the time limits.

[19]Mr Lawson for the Corporation submitted that the examples in s135 each describe a situation where something has intervened to prevent a claimant exercising their right of review. This could either be due to a claimant's personal injury or the actions of an agent or ACC.

[20]Judge Cadenhead in Williams v ACC 78/2004 considered the proper approach to interpretation of s135. He referred to Amin v Entry Clearance Officer [1983] 2 All ER 864 (HL) a case in which legislative examples were not considered to be exhaustive. He observed that the general description in s 135 is fleshed out by the examples given but the statutory examples are not to be construed as rigidly specific. They provide pointers and guidance to what may constitute exculpatory instances. The use of the words "such as" provides a flexibility of approach.

The facts of this case

[21]A factor in this case which suggests that it would be unfair in a general way for Mr Renata to have his claim barred is that he had always been active in pressing his claim. He had consulted solicitors and also his local member of Parliament until his inexplicable failure to respond to the decision letter of 8 November. There seems to be no doubt that would have lodged a review application if he had a clear understanding of the issues and had the resources to initiate the review. His explanation in his affidavit is:

22. I was in desperate straights because I felt that I was being taken advantage of by ACC but I am not an educated person who is able to or knows how to challenge such things by myself. That is why I tried to use a lawyer and why in desperation I went to see the secretary at the local MP's office.
23. I was also disadvantaged in finding somebody because at that time of the year every body is too busy to talk to somebody who does not have any money.
24. My case manager at Work and Income was concerned at what was happening and he told me about my present advocate who is also the President of a Beneficiary Society. I managed to track him down, which was difficult as his personal contact details or those of the Society are not listed in the telephone book. After eventually finding him and upon making an appointment I was interviewed by him on 27 February 2003. He wrote a letter to ACC on that date requesting my file as he advised me that before he could make a review application that he needed my file to have the correct facts. Because I am a beneficiary my advocate agreed to help me at no cost to me in an immediate sense without cost if I did not get onto weekly compensation. I was utterly relieved from that point on until my disappointment of the review decision not to hear my case.


[22]In this appeal Mr Renata says that the extenuating circumstances were a combination of things, but in particular

a) that he had cover
b) that because of his injury related loss of earnings he could not pay his lawyer for further advice
c) from October 2001 to November 2002 his application for weekly compensation was declined on grounds that he did not meet criteria
d) he became frustrated and depressed by the process which he did not fully understand
e) he did not know what steps to take and relied on assistance from professionals and his local electoral office
f) he did not realise that the letter of 11 November 2002 was something more significant than the other information given to him
g)he required further advice

[23]It is not really difficult to understand Mr Renata's failure to understand that failure to apply for review by 8 February 2003 could be fatal to his claim. It is reasonable to accept that Mr Renata would not have recognised the letter of 11 November 2002 as being something different from other negative advice that he had been given. The letter dealt with quite complex technical points, perhaps easily understandable to Corporation staff but for a claimant who was already confused about the refusal of his claim it was not straightforward. The central part of the letter read:

The three criteria used to determine any weekly compensation entitlement is assessed under Clause 19, Schedule One of the AI Act 1998 which stipulates the following criteria

·Had been an employee within 14 days before his or her incapacity commenced; and

·Had been an employee for a continuous period of at least 12 months immediately before that 14 day period ; and

·Would have been an employee within 3 months after the date on which his or her incapacity commenced, but for the incapacity

ACC have been unable to establish that all three criteria have been met, in particular we have been unable to establish that you have been an employee for a continuous period immediately before the 14 day period from the date of your original medical certification of the 20th October 2000 .

Your subsequent application for weekly compensation on the 20th May 2002 cannot be considered further for entitlement to weekly compensation as you have provided continued medical verification of on-going incapacity from your shoulder injury, which means that entitlement to weekly compensation does not get recalculated .

If you had entitlement to weekly compensation it would be reinstated at the assessed rate as at the 20th October 2000. As you were not eligible to receive weekly compensation at the 20th October 2000 you are not entitled to weekly compensation from the 20th May 2002.


[24]To some people that letter would have been all but incomprehensible. It is fair to accept Mr Renata's claim that he felt unable to deal with the problem on his own and he needed help. No doubt if he gave it his undivided attention he could have sorted things out in order to lodge an application for review in time. The appellant's case however is that he was confused and discouraged and his reason for lack of action was connected with despondency concerning the claim and lack of money.

[25]The question is whether that is enough to satisfy s135. I consider that there were extenuating circumstances that were oppressive enough to Mr Renata although a more resourceful person may have been able to respond more effectively. The extenuating circumstances were certainly more than mere forgetfulness or oversight. They are by no means as strong as the examples in s135(3) but they are of the same kind, that is to say significant contributions to the failure were the depressing effect of the personal injury and its consequences, the need to engage a professional representative to deal with the fairly complex argument between Mr Renata and the Corporation and finally the information from the Corporation which was confusing to Mr Renata particularly when the key decision letter was issued 14 months after the Corporation indicated its initial decision to decline the application. The vacation period made it difficult for Mr Renata to see people when he wanted to but he got on with the job and instructed Mr Dixon-McIvor within a reasonable time. At least it can be said there was no significant period during which Mr Renata slept on his rights.

[26]Care needs to be taken to see that the purpose of s135 is not defeated by an over-generous approach. Nevertheless I consider that the reasons for delay in applying for review of this claim fall fairly within the scope of extenuating circumstances under s135. The review was decided before Judge Cadenhead's decision in Williams. The approach taken by the reviewer adopted a more rigid adherence to the examples given in subs(3). For the foregoing reasons I find that there were extenuating circumstances that affected the ability of the claimant to meet the time limits.

[27]The appeal is allowed to the effect that the Corporation's decision is substituted by a decision that the application must be accepted as a late application. The appellant will have costs of $500.
0

#2 User is offline   hukildaspida 

  • Advanced Member
  • PipPipPip
  • Group: Member
  • Posts: 3353
  • Joined: 24-August 07

Posted 11 November 2011 - 07:28 PM

Refresh.


How many others have been left in limbo over the years because of negligence within http://www.acc.co.nz to not have fufilled there Duty of Care because they did not send letters until well after the date they decided there original decision?

Incompetence at it's best.


[25]The question is whether that is enough to satisfy s135. I consider that there were extenuating circumstances that were oppressive enough to Mr Renata although a more resourceful person may have been able to respond more effectively. The extenuating circumstances were certainly more than mere forgetfulness or oversight.

They are by no means as strong as the examples in s135(3) but they are of the same kind, that is to say significant contributions to the failure were the depressing effect of the personal injury and its consequences,the need to engage a professional representative to deal with the fairly complex argument between Mr Renata and the Corporation and finally the information from the Corporation which was confusing to Mr Renata particularly when the key decision letter was issued 14 months after the Corporation indicated its initial decision to decline the application.


The vacation period made it difficult for Mr Renata to see people when he wanted to but he got on with the job and instructed Mr Dixon-McIvor within a reasonable time. At least it can be said there was no significant period during which Mr Renata slept on his rights.
0

Share this topic:


Page 1 of 1
  • You cannot start a new topic
  • You cannot reply to this topic

1 User(s) are reading this topic
0 members, 1 guests, 0 anonymous users