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Accident Compensation Cases

Smith v Accident Compensation Corporation (ACAA, 16/08/13)

Judgment Text

DECISION 
Member Robyn Bedford
[1]
This is an appeal against the decision of J G Greene, Review officer dated 3 September 2012, in which he upheld the Corporation's decision to decline to accept a late application to review a lump sum compensation payment made on 11 December 1981 under s 120 of the Accident Compensation Act 1972 and declined jurisdiction in respect of the application to review the s 120 award. 
Background 
[2]
Mr Smith suffered an injury to his right knee on 19 August 1979, when he fell down some steps. ACC accepted cover for the injury and Mr Smith received various entitlements in respect of his claim. On 11 December 1981, Mr Smith was awarded lump sum compensation based on 8% permanent loss or impairment under s 119 and $1,500.00 under s 120 for loss of amenities or capacity for enjoying life and pain and mental suffering. His injury continued to be problematic and he continued to receive (unspecified) entitlements, including operations funded in 2006 and 2012. 
[3]
My inspection of the review file that ACC sent to the Registry shows that on 8 February 2012, ACC received a late application to review the s 120 award on the grounds that $1,500.00 was unfair, inappropriate and manifestly wrong when it was made. ACC asked Mr Winter to provide a full explanation for the delay in lodging the application for review and Mr Winter responded that Mr Smith was relatively young, he simply accepted the award and advice given and he was not in a position of knowledge. 
[4]
Mr Winter relied upon McDougall v ACC1
| X |Footnote: 1
McDougall v ACC [1983] 4 NZAR 85 
and the merits being the most important of the four factors. Mr Winter briefly described the effects of the injury on Mr Smith and in light of the “established case law” to which he referred ACC, suggested that the award should have been in the vicinity of $8,000.00 to $10,000.00. Mr Winter also relied upon Appleby v ACC in the High Court2
| X |Footnote: 2
Appleby v ACC (M No. 544/87) Administrative Division HC, Wellington, 23 August 2989, Greig J 
, and said that this case meant that ACC had also to take the effects of inflation into account. 
[5]
ACC searched its records and discovered that the original claim file had been destroyed, but there was some information relating to another knee claim in 2005 and the 2006 and 2012 operation claims. ACC declined the application, following consideration of the four McDougall principles, on the basis that there seemed to be no good reason for the delay and the merits did not support Mr Smith: The s 119 award was 8%, which was $800.00/ $10,000.00 and the s 120 award was $1,500.00. This did not appear incongruous or inappropriate and the findings in the case law Mr Winter relied upon were probably made with more information than was now available, which comprised Mr Smith's self reported limitations. ACC claimed prejudice because all medical records and the original claim file had been destroyed. 
[6]
Mr Winter filed an application to review that decision and this proceeded to a hearing before Mr Greene, who heard evidence from Mr and Mrs Smith concerning the effects of the injury and the reasons for not lodging an application for review at the time. He also received in evidence the original submissions made by Mr Smith's lawyer to support the s 120 claim and two reasonably contemporaneous medical reports. Along with the ss 119 and 120 decision letter and the notices which gave clear information concerning Mr Smith's right to review the awards within the 1 month allowed under the 1972 Act, this evidence appears to be all that Mr Smith or ACC could locate of his historical claim records. 
The review decision 
[7]
Mr Greene applied the McDougall principles to dismiss the application because the delay of 31 years was not explained by Mr Smith's age, as he was not in fact “young” when the decision was made, or by the alleged quality of his legal representation, though it was relevant that he was represented. As for the merits, while Mr Greene accepted that after Appleby, claimants with mobility injuries would often succeed in having their s 120 awards increased to the $10,000.00 maximum, and that Mr Smith's award was on the low side in light of the comparable decisions in other knee injury cases he had searched from the relevant time, he did not think there was such merit that Mr Smith should be able to review the decision some 31 years later. 
[8]
Regarding prejudice to ACC, Mr Greene took into account that the file was no longer available so it was impossible to know what, if any comparisons ACC had carried out at the time. He rejected the suggestion that ACC had benefited from the delay and said that he did not consider the potential liability for ACC that may flow from Appleby as relevant. Overall, Mr Greene considered that the delay was too significant and that Appleby did not apply in respect of increasing the award because the lump sum was paid well before that decision. ACC was prejudiced as the file was no longer available and justice did not require ACC to accept the late application for review. Therefore, he had no jurisdiction to consider the substantive issue under the other of the two reviews before him. 
[9]
Mr Greene awarded $700.00 costs on a claim of $2,000.00 based on 10 hours charged at $200.00 per hour, which he thought was too high for a lay advocate and said that Mr Winter was so experienced and the review did not raise any difficult or unusual issues, so it was really a matter of addressing the McDougall principles. Mr Green applied Neale (407/92) which held that the purpose of costs was to cushion rather than indemnify, and he also considered the matters I had referred to in awarding costs in Tangi v ACC3
| X |Footnote: 3
Tangi v ACC [2012] NZACA 4: The costs were subsequently reduced and settled following ACC's application for leave to appeal the costs award to the High Court and the production of the time records by the appellant's counsel. 
and declined to pay any disbursements because no details were provided to authorize him to do so. 
The notice of appeal 
[10]
The notice alleges that Mr Green misapplied the McDougall principles by giving undue weight to the length of the delay and insufficient weight to the merits of the claim, which he had accepted was on the low side, and that the award of costs was too light. 
The legislation: 1972 Act 
[11]
Section 153(4) provides that an application for review must be made in writing within 1 month after the date on which written notice of the decision is given, or within such extended time as the Commission may allow. 
[12]
Section 120(1) provides — 
“Where a person suffers personal injury by accident in respect of which he has cover under this Act, there may be paid to him by the Commission … a lump sum by way of compensation of such amount (if any) as the commission thinks fit in respect of — 
(a)
The loss suffered by the person of amenities or capacity for enjoying life, including loss from disfigurement; and 
(b)
Pain and mental suffering, including nervous shock and neurosis: 
Provided that no such compensation shall be payable in respect of that loss, pain or suffering unless, in the opinion of the Commission, the loss, pain or suffering (having regard to its nature, intensity, duration, and any other relevant circumstances) has been or is or may become of a sufficient degree to justify payment of compensation under this subsection: 
Provided also that any sum payable under this section shall be paid as soon as practicable after the medical condition of the person is in the opinion of the Commission sufficiently stabilised to enable an assessment to be made for the purposes of this section, or forthwith after the expiration of 2 years from the date of the accident, whichever is the earlier. 
Subject to the possible enhancement where there are special circumstances as provided for in subs (6), subs (5) provides that the maximum amount that may be paid is $10,000.00. ”
The evidence 
[13]
The original submission made by Mr Smith's lawyer for the s 120 lump sum assessment was available and I have reproduced the relevant parts in full: 
“Submissions McKay/ACC 13/11/81: … the injuries received by him on 19 August 1979 have caused many ongoing difficulties, which have considerably limited our client's work and life style to that which he enjoyed prior to the accident. 
… the nature of his injuries are such that his leg will never be able to function properly again. He is constantly aware of the injuries by virtue of a dull pain in his leg, and this pain and the discomfort worsens while his leg in use, and this of course affects his work ability, and his social activities. 
Mr Smith was, prior to the accident, able to partake in various sporting pursuits, however, this has now been seriously curtailed. He was, and is, a keen golfer, however cannot now complete a full 18 holes without developing a limp and considerable pain in his leg. This has not only lessened his enjoyment of the game, but also his ability, and his golf handicap since the accident is considerably higher than it was before. Mr Smith is also a keen water skier, however he now finds he is extremely limited in this sport, and in fact is mainly only able to watch others participating rather than participating himself. He has been told he can no longer play hockey or any other contact sport as he did in the past. Further damage to his leg will cause a more extensive disability, both in financial and physical terms. 
… Mr Smith has, over the years, developed a keen interest in Scouting, and was himself a Queens Scout. He is at present a leader with the Cromwell Scout Troup, however because of his injuries is unable to participate actively in a lot of the exercises and tramps undertaken. He also had a keen interest in trail riding, however has been advised by his doctor that this must also be given up. 
With respect to the effect the injuries have had on his work, we note that he is a plumber, and accordingly has frequently to climb ladders and work on roofs. This often necessitates him working on his knees, which causes him considerable pain. He is certainly unable to carry out all the normal activities a plumber would in the course of his job, and is at the present time fortunate in that his employer realises his limitations with respect to this type of work. This may not always be the case however. 
In short, Mr Smith's injuries have caused him considerable pain, discomfort, annoyance and inconvenience and he will have to receive physiotherapy treatment and maintain special exercises for the rest of his life. ”
[14]
The contemporaneous medical evidence comprises a referral letter from Cromwell Hospital dated 9 February 1981 and the resulting operation notes dated 19 June 1981 and a reporting letter dated letter 29 June 1981 from the Orthopaedic Surgeon: 
“Letter 9/2/81: This man twisted his right knee when he fell; down stairs at the 19th hole after golf. The knee became very swollen, blood was aspirated by Dr Lentil and he was put into a plaster cylinder for some weeks. Since that time he has had recurrent episodes of spontaneous swelling of the joint with aching on the lateral aspect. Sometimes he has difficulty flexing the knee during these episodes and he is often off work for a week or two because of these episodes. 
On examination he is a very overweight man, there is a moderate effusion in the right knee joint and there is tenderness along the lateral joint line, and pain referred to the lateral meniscus on McMurrays manoeuvre, all ligaments are intact. 
I suspect this man has a lesion of the lateral meniscus but one cannot be sure without examining the joints with an arthroscopy and if there is a tear of the lateral meniscus he may need to have this removed. 
Operation notes 19/6/81: This 30 year old man twisted his right knee when he fell down some stairs while under the influence of alcohol 12 months ago. This was treated in a plaster cast for ligament damage at that time. Since he has had recurrent swelling and pain in the lateral aspect of his right after severe exercise, especially water skiing. He has also felt a clicking on occasions in the lateral aspect of his right knee. He is still able to play golf and carry out most activities with no locking. 
Procedure: … the arthroscope was introduced into the lateral compartment of the right knee. There was some minor fibrillation of the lower pole of the patella, the medial joint compartment looked normal as did the medial meniscus. The anterior cruciate was shredded and completely ruptured. The lateral meniscus: the anterior horn of the lateral meniscus was questionably detached. There could have been a tear extending from the popiteal orifice posteriorly. It was decided that since this man had had no locking, and was really having minor symptoms from his knee to leave the lateral meniscus intact and observe him further. EUA under anaesthetic revealed a markedly positive pivot test on the right. 
Letter 29/6/81: This is too indistinct to reproduce in full, but it confirms that it was suspected but unable to be confirmed, that Mr Smith's lateral meniscus may be detached. Mr Smith was to visit a physiotherapist and be followed up as an outpatient. ”
[15]
The other medical evidence put in by Mr Smith comprises a reporting letter dated 23 September 2009 from Mr Matheson, Orthopaedic Surgeon, an Assessment report and Treatment Plan — Surgical Request prepared by Mr Matheson dated 15 August 2011, and a reporting letter from Mr Matheson to Mr Smith dated 24 January 2012. On the ACC file I located the referral to Mr Matheson from Mr Smith's GP dated 1 October 2010, Radiology reports dated 10 July 2009 (Right knee), 1 March 2010 (Left knee), and 15 April 2011 (both knees), and a letter from Mr Matheson to the GP dated 6 July 2011. 
[16]
The overall impression from this evidence is that Mr Smith's right knee continued to cause him pain and discomfort and affect and restrict his activities and his work. in 2006, he had arthroscopic surgery on the knee that confirmed that he had indeed ruptured his medial as well as his anterior cruciate ligament in his accident on 19 August 1979. He had changed his job from being a plumber to a building inspector but still suffered pain as a result of his work tasks and he had secondary degenerative changes as a result of his accident. In Mr Matheson's view, having reviewed the 1981 medical information, the injury Mr Smith received in the 1979 accident was significant, and his need for a total knee replacement was very clearly the direct result of his 1979 injury. 
Late application for review 
[17]
Mr Winter conceded the difficulties with Mr Smith's delay, but submitted that the merits are the most important consideration in these cases. He relied upon Mr and Mrs Smith's somewhat brief evidence given at the hearing concerning his ongoing pain and restrictions, but primarily focussed on Mr McKay's submissions and the effects he had described upon Mr Smith's sporting activities, his participation in the Scouts and his employment, as well as his comparatively young age of 29 at the date of the accident. Mr Winter then turned to the later medical evidence, which he said, confirmed the seriousness of the original injury and the diagnosis that had still been in doubt after the laparoscopic procedure in 1981. 
[18]
Mr Winter submitted that there was no significant prejudice to ACC because the 1981 medical evidence and Mr KcKay's submissions, and the fact that the 8% permanent disability assessment under s 119 was known, to a large extent overcame the fact that the report was missing. While he acknowledged that there was some prejudice to ACC in so far as explaining and defending the decision was concerned, the lack of detail should not matter in light of the awards made in comparable cases as demonstrated by the case law to which he referred me. The most important consideration, following Appleby, was whether the sum awarded represented fair, just and adequate recompense for the past, present and future effects of the injury and that similar cases were treated similarly. The focus was not, as ACC had supposed when considering the application for the late review, on any scale or even on the amount of the s 119 percentage, but the matters set out in s 120. The section did not compensate for disability, but for the loss of amenities or capacity for enjoying life, and pain and mental suffering. Mr McKay's submission was the “key” document and that was available. 
[19]
Mr Winter submitted that justice ultimately favoured Mr Smith as the award of $1,500.00 could only be seen as unfair, unjust and totally inadequate when compared with similar awards in similar cases. He then suggested that I look at the delay in raising the s 120 award to a proper level and make an allowance for inflation, and quoted Greig J's observation in Appleby that “if inflation was not to be taken into account there would be no way in which the loss in the value of money and the delay in its payment to a claimant could be properly met”. The only possible award under s 120 today, he submitted was the full $10,000.00. 
[20]
For ACC it was accepted that the merits are the most important consideration, but despite the Reviewer Officer's comment that the award was on the low side, the reasons for the initial decision were no longer known because the file were lost as a result of Mr Smith's long delay in challenging it. The reasons for the award were most likely related to the specific circumstances of the case, and any suggestion that ACC took a scaling approach either in the original decision, or at the review, were rejected. As was Mr Winter's submission that Appleby was authority for the proposition that s 120 awards are amenable to increase over time, and nor did it assist in demonstrating that ACC's award in 1981 was insufficient. 
[21]
The award ACC made under s 120 had to be assessed at the time it was made, not in terms of what the decision might have been, if it was made in 2013. There was prejudice to ACC because the file had been destroyed due to Mr Smith's long delay in challenging a decision he was perfectly happy with for over 30 years, as while there was some evidence still available, the important document was the s 119 permanent impairment assessment, which would have enabled a comparison with the symptoms now reported. The issue was the merits of the decision at the time it was made, and whether on the information available to ACC in 1981, the award was adequate. And, in light of the relatively low percentage impairment that was assessed by the expert at the time, there was nothing to suggest that the award was unfair, unjust or inadequate. The overall interests of justice favoured finality and the appeal should be dismissed because of the long delay, the lack of reasons for the delay and the prejudice to ACC. 
Case law: comparable circumstances 
[22]
In Appleby (Decision NO. 3/85), the appellant was a 33 year old solicitor when he suffered an initial injury to his right knee in 1978 in a skiing accident which resolved after six months. He suffered a problem in December 1981 when his knee locked when he was getting into a car and a further incident while playing tennis in [February] 1981. He was assessed on 13 January 1983 as having a permanent loss of function of 10% and ACC made an initial award under s 120 of $2,000.00, which was increased on review to $3,500.00 and prior to the appeal was increased by ACC to $5,000.00. 
[23]
On appeal, Middleton DCJ took into account the evidence of pain and stiffness and mobility problems the appellant experienced at work and when walking, or standing for any period, which worsened in cold weather and the impact when he was performing domestic activities around the home, or playing with his children or driving for any length of time. The biggest loss was in his ability to enjoy his sporting life, in which he played competitive tennis and squash at a good level and which was a source of great enjoyment, but which he had to give up because of his injury, along with social soccer and refereeing which had replaced the competitive soccer he had played at university. He had to give up skiing, which he had enjoyed with his wife for 15 years prior to the accident, and this was a great concern for him as he and his wife had both been able to enjoy this sport and he had hoped to teach his children skiing. He also faced 40 years of living with his problem, which would only get worse and cause more frustrations for him and his family. 
[24]
Judge. Middleton discussed awards under s 120 ranging between $3,000.00 and $6,500.00 in cases which caused severe loss of mobility, and said that the quantum of awards had not been rising markedly with the rise in inflation and it seemed to him where a person such as the appellant has been seriously hampered in the enjoyment of his life, that when comparing other decisions, one had to take the awards in then one had to take into account that there had been considerable inflation in the meantime. Middleton DCJ thought the appellant's loss of capacity to enjoy life together with the pain and concern about his future warranted an award in excess of $10,000.00 but was constrained by the statutory maximum. He mentioned earlier decisions where he had considered the effects of the accident to be even more serious because employment was affected, but said he considered that he had to take the question of inflation into account if he was to pursue equity as between various claimants through the passage of time. 
[25]
In Hogan (Decision No. 20/86), the appellant was a 29 year old freezing worker when she suffered a knee injury on 26 September 1977 that was sufficiently serious to force her to change occupations and become a hairdresser within a relatively short time after her accident. She had attempted to return to her original work after the injury but only lasted a few weeks. She then had six months off work following surgery and once again attempted unsuccessfully to return to work. She was assessed at 10% permanent impairment under s 119, and awarded $2,000.00 under s 120. 
[26]
The Review Officer took into account the fact that Ms Hogan underwent considerable pain following the initial accident, her operation and treatment history and her ongoing mobility and pain issues. She was a keen sportswoman and a representative player in basketball, netball and tennis and following the injury, she had to give up active participation in these sports. She had unsightly scarring on her knee, which she tried to cover when dressing. She had two children to care for and she had problems when her knee gave way and she fell over and there was also the real possibility that she would have further problems and the onset of arthritis. On account of all these factors, the award was increased to $7,000.00. 
[27]
The Authority, after cautioning against “fine tuning” decisions of Review Officers, increased the award to the $10,000.00 because of the severity of the impact on her sporting activities and the delay in not issuing the primary decision until 12 December 1984, and took into account that there had been a considerable incidence of inflation in the intervening time. 
[28]
In McFayden (Decision 49/86) the appellant suffered a knee injury in a cycling accident as a 50 year old, on 2 May 1980. He had pre-existing osteoarthritis with progressive changes to his knee, but he had no apparent problems with the knee until after the accident. ACC awarded him 6% out of a possible 10% assessed permanent disability under s 119 and $2,500.00 under s 120. The Authority obtained a further medical assessment that confirmed the 6% under s 119 because of the previous degenerative changes, and the appeal was dismissed. There was nothing in the decision to explain the s 120 award. 
[29]
In Appleby (High Court No. 544/87) Greig J dealt with an appeal by Mr Appleby against the failure by Middleton DCJ to award him in excess of the $10,000.00 maximum, which was possible in special circumstances under s 120(6), and a cross appeal by ACC against Middleton DCJ's decision to take the effects of inflation into account. Another aspect raised in the appeal was the long period of four years between the accident and the final award on appeal of $10,000.00. 
[30]
Greig J noted that s 120 provides for payment to be made no later than the expiration of two years and ACC had made the original payment within this time. He rejected any comparison with another case that qualified for special circumstances because the first award in that case did not take place until four years after the accident, but he upheld the $10,000.00 and found that the authority was correct to take inflation into account. However, Greig J explained the consideration of inflation on the basis that comparisons with earlier cases were inevitable when trying to ensure “.. an even handed and equitable award of compensation to all claimants so there are not wide discrepancies and variations between the awards made for what are, in general terms, the same kinds of injuries and the same results.” The comparison must take into account the change in value of money, and it would be unfair to tie an award in similar circumstances to the unit or value of currency ten years before the ward is made. This was how Greig J understood the Authority dealt with the appeal, and he thought that the Authority was correct. 
[31]
In McMahon (Decision No. 160/89), the appellant suffered a left knee injury as a 20 year old, while playing rugby in June 1982. He received outpatient physiotherapy treatment and underwent a diagnostic arthroscopy in May 1983, but no special treatment was recommended. In January 1984 he was diagnosed by a specialist surgeon as having a rupture of the anterior cruciate ligament with possible lateral meniscus tear and an anterior substitution and repair and a lateral meniscectomy was performed. In July 1986, he was assessed at 11.5% total disability and a moderate award was suggested under s 120. The specialist commented that the surgery had significantly improved the function of his knee but there was still some symptomatic and restrictive instability in the knee, which precluded him taking part in sports or games that required strenuous use of the left leg, and there was a pre-disposition to premature arthritis in the knee. Based on that report, he was awarded $3,500.00 under s 120, later increased on administrative review to $6,000.00. Mr McMahon sought a review. 
[32]
Mr McMahon had further surgery in February 1988 for a further anterior cruciate reconstruction and he had also been diagnosed by this time as showing early degenerative changes of varying severity. The review was heard in March 1988 and the award was increased to $8,000.00. The appeal was heard in May 1989. The surgeon recommended delaying a reassessment under s 119 until 1990, when the effects of the surgery would be more evident, but the appeal proceeded under s 120. 
[33]
A “voluminous” amount of evidence was on the file concerning the effects on Mr McMahon's domestic, recreational and social activities and his family circumstances, and by this time he had two young sons. The review decision had taken this into account, but Mr Blackwood decided that “the Appleby series of cases” was relevant as they related to young men with injuries affecting mobility pre-dating Mr McMahon's injury and his facts were not sufficient to distinguish his case. Based on the reported loss of mobility, significant pain over a lengthy period, the likelihood of early degenerative changes and the possibility of continuing discomfort, he was persuaded that the maximum award of $10,000.00 was appropriate for a man who at the proper date of assessment (June 1984) was only 22 years of age. 
Discussion 
[34]
The four McDougall principles - delay, reasons for the delay, the merits and prejudice do not require a detailed examination in this case. The determination of the appeal requires the balancing of the weight to be given to what can only be described as an excessive delay that has not been justified by the explanation Mr Smith has put forward, as against the weight to be given to adequacy of the s 120 amount awarded to Mr Smith, in light of the evidence and the reasonably contemporaneous awards made in comparable cases. 
[35]
I agree with Mr Winter that there is no significant prejudice to ACC because there is sufficient evidence against which to evaluate the s 120 award, even if the specific factors that ACC considered cannot be identified, and there is no ongoing entitlement that has to be calculated or which is dependant upon any other information that may have been destroyed with the original file. In practical terms, the prejudice is to Mr Smith, as the evidence does not go far enough to establish that the symptoms from which he now suffers are directly attributable to the 1979 injury, despite Dr Matheson's views on causation. 
[36]
The impact of Mr Smith's right knee injury on his work history and his domestic and family life after the accident has not been covered insufficient detail and these matters are directly relevant to assessing compensation under s 120. More information would have been helpful to Mr Smith, as would information concerning the 14 other covered injuries occurring up to the end of 2000. The injuries may or may not be ultimately relevant, but without the injury details, I cannot reliably conclude that the 1979 injury made the 2006 and 2012 surgery an inevitable future outcome, even though I accept that it was the precipitating cause of the need for that surgery. And nor can I conclude that the 1979 injury alone was the cause of Mr Smith's change of occupation, or the sole cause of the ongoing pain and discomfort that he suffered, or the later degenerative changes. 
[37]
This must distinguish Mr Smith's claim in so far as the full range of factors to be considered is concerned, and it highlights the real problem with respect to the missing s 119 report, as they contained information relating to family life, past work history and future prospects, likely future problems such as arthritis, and possible surgery. The reporting specialist also often made a reference to the level of compensation that should be awarded in light of this, as well as setting the permanent disability percentage under s 119. In the absence of this sort of information, I feel constrained to take more notice of the contemporaneous medical reports than the more recent medical information, which suggests that when the s 120 award was made, Mr Smith's symptoms were relatively minor and that provided he curtailed his activities and had ongoing physiotherapy, his prognosis for the future was relatively good and his existing work was manageable. 
[38]
That said, however, I accept that in Mr Smith's circumstances as presented by Mr Kay in his submission, the award of $1,5000.00 is manifestly inadequate and was so when it was made. It is substantially less than the $2,500.00 that was awarded in McFayden to a man who was 20 years older, and had a pre-existing degenerative condition affecting his injured knee, and it does not seem to properly take into account loss of capacity to enjoy life, which is a primary focus of s 120(a). Mr Smith lost his ability to participate in the high level of sporting pursuits and related social and community involvement that were central to his non-work activities. It is very clear that this loss seriously' impacted on his capacity to enjoy life, and that as a relatively young man at the time of the accident, he would feel this very keenly and well into the future. 
[39]
But, any suggestion that Mr Smith's s 120 award should now be automatically set at $10,000.00 to reflect inflation and the passage of time up to the present, is misplaced. There was no delay at all in ACC making the payment under s 120 such as occurred in Hogan or McMahon, as the delay was purely Mr Smith's in challenging the s 120 decision, and, unlike the appellants in all the comparable cases I have discussed, Mr Smith did not set the review and appeal process in train until many years after he should reasonably have done so if he was dissatisfied with his award. The ss 119 and 120 notices contained clear and unambiguous review information, and it is contrary to the interests of justice for him to now be awarded more than he would otherwise have been, had he exercised his rights within time. 

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