Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Accident Compensation Cases

STRINGER v ACCIDENT REHABILITATION & COMPENSATION INSURANCE CORPORATION (DC, 18/04/96)

Headnote - Brookers Accident Compensation Reports

Judgment Text

JUDGE IMRIE:
I have decided that the appellant's entitlement to a disability allowance may be backdated. 
Background 
The issue in this appeal is whether the appellant's independence allowance should be backdated to 13 weeks after the date of her injury or to 1 July 1992 when the 1992 Act came into force.[(1996) 1 BACR 192, 193] 
The appellant was born on 20 August 1976. On 23 November 1989 she was admitted to the Rotorua Hospital for the removal of her appendix. She was discharged 6 days after the operation. She was readmitted a week later suffering from abdominal pain. Her mother gave evidence at the review hearing that she continued to suffer recurrent attacks of acute appendicitis. In late 1994 it was determined that the appellant's appendix had not in fact been removed in the operation in 1989 and it would be necessary for the appellant to undergo a further operation to remove her appendix. 
As a result the appellant's mother on 14 October 1994 filed a claim for medical misadventure on the appellant's behalf. The Medical Misadventure Advisory Committee determined that medical misadventure (medical mishap) had occurred. In a letter dated 5 March 1995 the appellant's mother was advised that the claim for cover had been accepted by the Corporation. 
The Corporation arranged for an independence allowance assessment to be made. That assessment was completed on 25 March 1995. It was determined that the appellant's disability for which the allowance would be payable was 100 percent. The appellant was advised in a letter dated 20 April 1995 that her independence allowance would be paid from the date of the assessment or 13 weeks after her injury whichever was the later. The appellant reconsidered the matter and determined that as this was a medical misadventure claim the independence allowance would be backdated to the date of the lodgment of the claim, ie 12 October 1994. The appellant was advised of this in a letter dated 27 April 1995. 
The appellant applied for a review of the decision. The review hearing was held on 13 July 1995. The appellant was represented at the hearing by her mother. A decision was issued on 17 August 1995. The officer determined that the Corporation's decision to backdate the independence allowance to the date of the lodgment of the application was correctly made and the review application was declined. 
Mrs Stringer lodged on her daughter's behalf a notice of appeal dated 19 August 1995. To the notice of appeal Mrs Stringer attached three pages expanding on statements made in the appeal form and it is appropriate to set out some of the points she makes. 
(1)
In respect of medical questions raised by the appeal Mrs Stringer submitted that there had been several incidents of medical error and that when the appellant was readmitted on 5 December 1989 an M46 claim form could have been filed then. She said that her daughter's symptoms had been continually ignored by all doctors concerned until Dr Shaw solved the mystery on 2 September 1994 when he discovered that her appendix had not in fact been removed in the 1989 operation. 
(2)
Mrs Stringer said that the errors of law were that s 54 does not make provision for medical misadventure as a result of a failed internal operation as the patient has no knowledge of or proof of the medical misadventure to enable an M46 claim form to be completed. She said this was not a normal claim for an independence allowance but is a special claim for backdating entitlement. 
(3)
Mrs Stringer said that the question of law to be resolved is that it is unfair that the appellant is denied an independence allowance for the period 21 February 1990 to 12 October 1994 and is also denied the right to make a claim against the hospital where the 1989 operation was carried out.[(1996) 1 BACR 192, 194] 
(4)
Mrs Stringer said that the grounds of the appeal are that Rachel's cover has been accepted as medical misadventure which occurred on 23 November 1989 and this has caused personal injury to Rachel and she qualifies for an independence allowance, therefore she should receive an independence allowance from 21 February 1990 which is 13 weeks from the date of the failed appendectomy. 
(5)
She said that nowhere in s 54 does it say that any delay in the filing of the paperwork has any effect on entitlement. Therefore the delay by the medical profession in establishing the injury or completing the M46 claim form does not affect the entitlement to an independence allowance or the backdating of the same. 
(6)
She said that furthermore it is a fact that the M46 claim form cannot be completed for medical misadventure by a patient alone. A doctor has to complete the bottom section. It would not be accepted by the Corporation without medical evidence of cause which is completely beyond the control and jurisdiction of the patient until the medical profession admits medical misadventure. 
(7)
Mrs Stringer also said that Rachel's case manager telephoned Rachel and informed her that the independence allowance would be backdated to 23 November 1989 and that the appropriate amount would be deposited in her bank account but he phoned her back many days later and said it would not be backdated after all. 
(8)
In relation to the relief which the appellant sought Mrs Stringer also criticised what she said were a number of inaccuracies and omissions in the decision of the Review Officer. In particular she said that the decision indicates that there was never a problem between 23 November 1989 and 2 September 1994 and says that that is a gross omission, incorrect, and deliberately misleading. 
(9)
Mrs Stringer also criticised the medical reports in a number of respects but it is not necessary for me to list those criticisms as in fact the Corporation has accepted that there was a medical misadventure and the only question I have to decide is whether the independence allowance can be backdated. 
The appellant did not appear and was not represented at the appeal hearing. On the Corporation's behalf Ms Smith presented submissions in writing and they were discussed. 
Submissions on behalf of Corporation 
In her submissions Ms Smith referred to s 54 and the Accident Rehabilitation and Compensation Insurance (Independence Allowance Assessment) Regulations 1993 and regs 3 and 12 in particular. Ms Smith submitted: 
“3.4 It is accepted that the provisions relating to the assessment and payment of an independence allowance can operate harshly in respect of an individual whose claim is for medical misadventure.[(1996) 1 BACR 192, 195] 
3.5 This is particularly so as the time delay between making a claim under the Act and having that claim accepted is usually longer where the claim is for medical misadventure, than for other claims. This is because of the procedures that need to be undertaken on a medical misadventure claim, and in particular the fact that the claim is referred to the Medical Misadventure Committee and the medical professionals involved are given an opportunity to comment on recommendations of the Medical Misadventure Advisory Committee. 
3.6 It is because of these delays that the Corporation has adopted the policy of backdating the entitlement to an independence allowance in medical misadventure claims, to the date of the application. A strict application of the provisions of the Act would mean that the independence allowance would not be payable until the assessment had been completed. That is the requirement set out in section 54(5) of the Act. ”
Ms Smith also referred to Hart v ARCIC 23/8/95, Judge Middleton, DC Auckland 100/95. In that case the appellant first injured his back in 1985 and fell again and injured himself on 12 July 1990. On 30 August he lodged an application for an assessment for an independence allowance and the assessment was conducted on 16 September 1994. The Court referred to s 54 of the Act and confirmed that the entitlement to an independence allowance is to commence not earlier than 13 weeks after the date on which the personal injury caused the disability was suffered, or the date of the assessment whichever is the later. The Court accepted the Corporation's decision that 16 September 1994 being the date of the assessment was the date on which the appellant's entitlement to an independence allowance had to commence. 
Ms Smith also submitted said that if the Court does decide to backdate the payment of the independence allowance in this case the entitlement cannot be backdated prior to 1 July 1992, when the 1992 Act came into force. 
Consideration 
I accept that the entitlement to an independence allowance cannot be backdated further than 1 July 1992 when the 1992 Act came into force. The question is whether in this case the entitlement can be backdated to 1 July 1992. 
There will be many cases when it is beyond the control of the claimant to lodge an application for an independence allowance at the time he or she becomes entitled to one. For example she may be under a disability and not have anybody to lodge an application for her. It would be unfair and inconsistent with the philosophy of the Act if the entitlement to an independence allowance could not be backdated in cases such as those. 
In the case of this appellant in particular: 
(1)
She was aged 13 at the time of the medical misadventure in 1989. 
(2)
The fact that there had been a medical misadventure was not ascertained until 1994 and 
(3)
She was not in a position to claim an independence allowance until the Medical Misadventure Advisory Committee had come to the conclusion that she had suffered medical mishap and the Corporation had advised the claimant that that was accepted. 
[(1996) 1 BACR 192, 196] 
It would be unfair in those circumstances if the appellant's entitlement to a disability allowance could not be backdated. The Act (and the 1982 Act) prevent her from suing the hospital or the doctor for general and special damages. The entitlement to an independence allowance is one part of the compensation under the Act which is intended to replace that right to sue. 
Section 54(5) reads: 
“(5) The Corporation shall not pay any independence allowance unless the assessment of the degree of disability of the person in respect of whom it is to be paid has been made in accordance with— 
(a)
Scales prescribed under this Act which may be based on impairment or disability or a combination of impairment and disability; or 
(b)
In the absence of the scales referred to in paragraph (a) of this subsection, the American Medical Association Guides to the Evaluation of Permanent Impairment (Second Edition)— 
and any such allowance shall be payable from the date of the assessment or the date determined under subsection (2) of this section, whichever is the later. ”
The Corporation's case is that the words “the date of the assessment” mean the date when the assessment is actually carried out but they can equally mean the date as at which the disability of the claimant is assessed. In this case the assessment was carried out on 25 March 1995 and the appellant's disability as at that date was assessed but in fact on 25 March 1995 the appellant's disability as at 1 July 1992 could have been assessed. 
Nothing in the Independence Allowance Regulations means that the disability of a claimant cannot be assessed at a date earlier when the assessment is carried out and under reg 3 a claimant may apply for payment of an independence allowance from a date earlier than the application is made. In fact in this case of course the Corporation has treated the assessment carried out on 25 March 1995 as an assessment of the appellant's disability as at 12 October 1994 when her application for cover was lodged. 
The fact that the degree of disability of a claimant can be assessed as at a date other than the date on which the assessment is carried out is shown by s 54(6), (7), (8), and (9). Those subsections read: 
“(6) Notwithstanding anything in subsection (5) of this section, if the assessment has not been made within 13 weeks after the date on which the personal injury causing that disability was suffered, but the Corporation is satisfied that— 
(a)
The assessment has not been completed (whether or not it has been commenced) for reasons beyond the control or responsibility of the injured person; and 
(b)
If the assessment had been completed the degree of disability of the injury would have entitled the person to an independence allowance— 
the Corporation shall pay an independence allowance as if the injured person's degree of disability had been assessed at a percentage estimated by the Corporation. 
(7) No independence allowance shall be payable under subsection (6) of this section for a period exceeding 12 months from the day on which the personal injury was suffered. 
(8) Where an independence allowance is paid to a person under subsection (6) of this section and that person's degree of disability is subsequently assessed to be greater than that estimated by the Corporation, that person shall be entitled to receive the independence allowance as if that assessment had been made 13 weeks after the date on which the personal injury was suffered.[(1996) 1 BACR 192, 197] 
(9) The Corporation shall be entitled to recover any amount paid under subsection (6) of this section if the assessment subsequently establishes that the degree of disability is less than that estimated by the Corporation. ”
On the basis that the words in s 54(5)“the date of the assessment” refer to the date as at which the claimant's degree of disability is assessed in this case the appellant's disability should be assessed as at the date when the Act came into force, namely, 1 July 1992. If the assessment proves that the appellant was not entitled to an independence allowance between 1 July 1992 and 12 October 1994 when she lodged her claim for cover so be it, but it appears that her degree of disability entitled the appellant to an independence allowance at some time before her claim for cover was lodged (and if the Act had been in force then probably as far back as the date of the operation in November 1989). 
Conclusion 
The appellant should be reassessed to see if as a result of her degree of disability she was entitled to an independence allowance on 1 July 1992 (or at some date between then and 12 October 1994), and if she was the independence allowance should be backdated to that date. 

From Accident Compensation Cases

Table of Contents