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Accident Compensation Cases

S B v Accident Rehabilitation & Compensation Insurance Corporation (DC, 07/10/96)

Headnote - Brookers Accident Compensation Reports

Judgment Text

JUDGE MIDDLETON:
There will be an order that no details of this decision shall be published which are likely to lead to the identity of the appellant. The decision itself will be issued under the letters S B. 
The appeal relates to the decision of the respondent to decline to pay the appellant interest pursuant to s 72 of the Accident Rehabilitation and Compensation Insurance Act 1992. 
The background to the appeal is that on 15 October 1984 the appellant lodged a claim with the respondent for mental stress arising out of his then employment. The respondent declined the claim against which decision the appellant applied for a review. Because of difficulties which are not relative to this appeal that review was not heard until June 1992 and the decision of the review officer declining the application was delivered on 7 August 1992. It was accepted by the review officer that the deemed date of the accident was 20 November 1982 being the date the appellant gave up his then employment. 
In August 1992 the appellant applied for earnings related compensation. It appears that thereafter numerous difficulties arose in the issue of a decision on that claim. It was necessary for the respondent to obtain details of the appellant's income and it appears that some of his previous employers' files had been purged. In addition, it was necessary to obtain medical reports because on occasions the appellant had been able to undertake some work. It is also clear from the files that the appellant on numerous occasions had to request the respondent to hurry up the process of reaching a decision. I do not consider that on the basis of the information on the file the delays could be blamed on the appellant, but in the result, and this again has no bearing on this appeal, the appellant accepted a lump sum award of $10,000 in satisfaction of his claim against the respondent for wrongful action in the delays associated with processing his claim. 
An assessment of earnings related compensation was made and payment commenced on 24 August 1993 with arrears from 18 February 1993 to 23 August 1993 being paid in October 1993. On 5 January 1994 a reassessment of the quantum of earnings related compensation was made and further arrears were paid for the period 1 April 1984 to 1 November 1993. On 26 July 1995 the appellant requested payment of interest on the earnings related compensation pursuant to s 72 of the Accident Rehabilitation and Compensation Insurance Act 1992, backdated to February 1983. The appellant submitted with that application that from at least 21 September 1992 the appellant should have been able to make an assessment of his earnings related compensation because all the necessary information was with the respondent. 
On 25 September 1995 the respondent notified the appellant that it declined to make any payment of interest because it considered that it did not have all the necessary information available until 9 August 1993. The appellant applied for a review of that decision and in a decision issued on 25 January 1996 the review officer held that the application was unsuccessful. It is against that decision that the appellant now appeals.[(1996) 1 BACR 417, 419] 
Unfortunately the respondent's counsel did not provide submissions to the appellant until the morning of the appeal hearing with the result that the appellant had only the opportunity of a cursory glance at them prior to the hearing. Out of courtesy to the Court he consented to go on with the hearing, but I permitted him to file further written submissions at a later date when he had had a full opportunity to consider the respondent's submission. 
The appellant provided me with written submissions, the principal issue being that pursuant to s 72 of the Accident Rehabilitation and Compensation Insurance Act 1992 provides that: 
“Where compensation based on weekly earnings is to be paid to a claimant and is not paid within one month after the respondent has received all information necessary to enable the calculation to be made, the respondent shall pay interest on the amount payable at the rate prescribed for the purposes of s 87 of the Adjudicature Act 1908 from the date on which payment should have been made to the date on which it is made. ”
The appellant submitted that that wording is quite clear and unambiguous and that the review officer had completely misunderstood the appellant's claim for interest. He submitted various alternative dates from which it would be possible to say that the respondent had the necessary information and could have reached a decision. The appellant submitted that the intent of the legislation is clear and unambiguous and is a remedial provision which should not be narrowly construed. The appellant made further submissions regarding some concerns he had for the manner in which the respondent has applied s 87 of the Adjudicature Act 1908 in other cases, but I do not consider that they are relevant to this appeal. 
Ms Smith submitted that she has no argument with the appellant's interpretation of s 72. However, she submitted that before the appellant can bring his case within the confines of s 72, it is necessary to have regard to the fact that the appellant's entitlement to earnings related compensation was deemed to flow from the date of his accident which was 20 November 1982. She submitted that it then followed that as the Accident Compensation Act 1982 under which the claim had been accepted had been replaced by the 1992 Act, the transitional provisions of the 1992 Act had to be considered. In that regard, as the appellant's deemed date of accident was 20 November 1982 and his claim for cover was lodged in 1984, it had to be determined under the provisions of s 135(3) of the 1992 Act. She submitted that accordingly the respondent then had to turn to s 138 of the 1992 Act which covered the appellant's position in that immediately before 1 July 1992 he would have been entitled to be in receipt of compensation calculated pursuant to ss 59, 60, 62, 63 and 64 of the Accident Compensation Act 1982 and that compensation would continue to be payable as if it had been calculated under the 1992 Act. Section 138 also provides that any adjustments to the calculations made pursuant to s 138(1) other than pursuant to an Order in Council or to new regulations were to be made pursuant to the Accident Compensation Act 1982. She submitted that it therefore followed that the appellant's assessment of earnings related compensation was an assessment made under the 1982 Act which has no provision for the payment of interest for late payment. She submitted that while there have been some cases in which interest has been paid they arose out of claims for pecuniary loss not related to earnings, a submission with which I agree.[(1996) 1 BACR 417, 420] 
The appellant has gone to considerable trouble to make his submissions and I can sympathise with him in the obvious problems he had in obtaining satisfaction from the respondent. However, my position is that I have to decide whether s 72 of the 1992 Act applies to this appellant's claim. I consider that the appellant has mistaken the interpretation of the transitional provisions of the 1992 Act. It was unfortunate that neither the respondent nor the review officer clearly spelt out these issues in making their respective decisions. However, I am satisfied that Ms Smith's submissions are correct. The appellant is in receipt of earnings related compensation under the 1982 Act and is not in receipt of weekly earnings assessed under the 1992 Act. As there is no provision comparable to s 72 contained in the 1982 Act the appellant's appeal must fail and is accordingly dismissed. 

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