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Accident Compensation Cases

Tuioti v Accident Compensation Corporation (DC, 07/12/00)

Judgment Text

Judge M J Beattie
The issue in this appeal is whether a Review Officer had jurisdiction to hear and consider an application for review of a decision by the respondent relating to the ceasing of entitlements to the appellant in respect of a neck injury suffered by the appellant in November 1990. 
The facts which are relevant to the determination of this issue, as I find them to be, are as follows. 
In 1988 the appellant lodged a claim for cover with the Corporation in respect of industrial asthma said to have been contracted by the inhalation of dust and fumes from his employment. The appellant received treatment for that injury and was assisted with rehabilitation to take up other employment which would not aggravate his condition. 
It seems as though the appellant suffered some form of trauma to his neck in or about 1990 and this claim was included with, and formed part of, the asthma claim which the respondent was administering. The respondent's file would indicate that it accepted cover for his neck injury and he was receiving weekly compensation because of the incapacity that this particular injury caused, as was certified from time to time by his GP. 
In early 1999 a review of the appellant's file was undertaken by the Team Manager who assessed that the appellant was not entitled to continued cover in respect of his back/neck injury as it had nothing to do with the industrial asthma claim which had been the subject of cover. 
The respondent sought an opinion from Mr D E Allen, Orthopaedic Surgeon, as to the appellant's condition and Mr Allen reported on 8 May 1999 that the appellant had well established disseminated idiopathic skeletal hyperostosis (DISH). Mr Allen was able to note that in x-rays taken in 1991 the DISH was well established. It was Mr Allen's advice that there was no evidence of any specific injury and it was his opinion that the appellant's incapacity was due wholly to the degenerative condition of his back. 
It was as a consequence of receiving that advice that the appellant's case manager wrote to the appellant on 30 July 1999 enclosing a copy of Mr Allen's report and advising that his back condition was not covered under the Act and that entitlements in relation to his back condition would be discontinued as from 25 August 1999. The letter went on to advise that the appellant had a right of review of this decision and it stated that there was a strict time limit of three months to make an application for review. 
The receipt of that letter prompted the appellant and his wife to make an appointment to see his case manager and a meeting took place on 8 September 1999. The case manager, Lois Clarkson, has made a file note of that meeting, the relevant parts of it state as follows: 
“I met with Mr Tuioti and his wife today. They wanted to discuss the cessation of entitlements in relation to the findings by Mr Allen of a non injury condition. I explained that cover was only available for injury by accident and it was found that Mr Tuioti's condition was not caused by injury. 
I advised Mr Tuioti and his wife that they could apply for a review and could seek a second opinion if they wished. He would have to pay for this. If he was successful at review he may be awarded some costs but if he was not successful he would have to pay the full costs himself. 
Mr Tuioti then mentioned his asthma which was caused by his work and which was an ongoing problem for him. I then noticed that the entitlements for his back were all being paid on the claim for asbestosis. I said we would continue to pay out on the asbestosis file and recommence his weekly compensation. However on speaking with the Entitlements Claims Manager I have been advised that medical certification must support the payment of the entitlement and there is nothing on the current medical certificates indicating that Mr Tuioti's incapacity is caused by asbestosis. ”
In a letter which is dated 7 September 1999 but clearly was not written until 8 September, Miss Clarkson wrote again to the appellant as follows: 
“Re out meeting today 
As discussed ACC has declined payment of any further entitlements on your back claim. You have the right to review this decision. 
I am unable to restart weekly compensation payments on the asbestosis claim as I said I would. I have been advised by my entitlements claims manager that medical clarification is required in relation to your chest condition. Weekly compensation cannot be paid in relation to this claim at this time. I am sorry for misinforming you about this. Until a decision is reached in relation to entitlement on the asbestosis claim I suggest you discuss with your doctor the possibility of applying for a sickness/medical benefit. I will be in touch with you as soon as possible to clarify this matter. ”
There the matter rested until a further letter was written to the appellant by Miss Clarkson on 22 October 1999. That letter was headed up Re your request to restart weekly compensation in relation to your asthma condition. The letter went on to advise that the Corporation had considered the matter and took the view that the asthma problems he was experiencing were unlikely to be directly related to that which had occurred at his work in 1988. The letter noted that his asthma was well controlled and that provided he did not go back into his previous work environment there should be no problem. The letter went onto state: 
“Any problems that you are now experiencing with asthma is unlikely to be directly related to the exacerbation you had in 1988. Unless further medical evidence is submitted to the contrary there is at this time no basis to reactivate ACC entitlements for your current asthma problems. ”
The letter went on to advise that the appellant had a right to apply for a review of this decision and again it notified that the application must be lodged within three months. 
It was following receipt of that letter that the appellant did in fact lodge an application for review. That application is dated 10 November 1999 but is stamped as having been received by the respondent on 16 November 1999. The application states that it concerns decisions advised to the appellant in writing of 22.10.99 and 7.9.99. In the form where the claimant is asked to give reasons for his application he states as follows: 
“I disagreed with ACC's decision to discontinue my weekly payments which I was entitled to due to work related injuries some years ago. (1) A recent report from a back specialist ACC concluded that my regular back pains no longer associated with past injuries. Hence ACC stopped my payments because of that one report. (2) What has happened to the second claim regarding the lungs? ”
The appellant sought a resumption of weekly payments. 
At the review hearing the only matter that was considered was the right of review of the respondent's decision to cease weekly compensation in relation to his back condition. The Review Officer treated this as a jurisdiction question in the first instance and proceeded to determine that the decision which the appellant sought to review was in fact the respondent's decision of 30 July 1999, not its letter of 7 September 1999. He ruled that the application for review when lodged was outside the statutory three month period and that therefore the application for review was not a valid application. 
It is relevant to note that the Review Officer has recorded the explanation given by the appellant of he and his wife's understanding of the situation. This was that following the meeting on 8 September 1999 they understood that ACC were to reconsider his claim so they waited and waited and did not lodge the review until much later. They respected the fact that the case manager had had a death in the family and left her alone. She had been hard to contact. In their view the second letter of 7 September was not outside the three month deadline. There was a clash of understandings. 
Mr Ormsby reaffirmed the submission which had been made at the review hearing as to the misunderstanding of the appellant and of his belief that Ms Clarkson was reconsidering the question of weekly compensation in relation to the back claim. 
Counsel further submitted that the letter of 7 September referred to the back claim and was a letter which gave rights of review. Counsel submitted that this letter was sufficient to enable the appellant to be within the three month period of a decision relating to the cessation of his entitlement. He submitted that the circumstances in this case were different from that considered by this Court in its decision in Hull (249/97) in that the letter of 7 September mentioned the back injury and attached review rights. 
Mr Sherriff, counsel for the respondent, submitted that the letter of 7 September was not a decision letter, it was not a new decision relating to entitlements as to the appellant's back. He submitted that the letter of 30 July was quite clear as being the decision letter in relation to those entitlements. Counsel submitted that the letter of 7 September was a decision only in respect of the asbestos claim and the notice of review which the appellant did lodge is certainly valid in relation to issues pertaining to that claim. 
This appeal falls to be considered under the provisions of the Accident Insurance Act 1998 as it pertains to rights of review. Section 136 is the successor of section 89(5) of the 1992 Act and states as follows: 
How to apply for review- 
A review application is made by giving an application that complies with subsection (2) to the insurer. 
The application must- 
Be written: 
Be made on the form provided by the insurer for the purpose, if the insurer provides such a form: 
Identify the decision or decisions in respect of which it is made: 
State the grounds on which it is made: 
Be made within 3 months of- 
The date on which the insured has a decision under section 66; or 
The date on which the insurer gives notice under section 72. ”
From the provisions of that section it is clear that an application for review must be made within three months of the date on which the insurer gives notice. Prima facie in this present case that would require the lodging of an application for review on or before 30 October 1999. On the facts as I find them the application for review was lodged some 16 days after that deadline. 
The only way that this appellant could have review rights preserved in relation to the Corporation's decision to cease payments in relation to his back injury would be if its letter of 7 September 1999 could be considered a decision in terms of the Act. The meaning of “decision” in section 136 is now set out in the interpretation section of the Act and “decision” means all or any of the following decisions by an insurer on a claim. 
A decision whether or not an insured has cover; 
A decision whether or not the insurer will provide any entitlements to an insured; 
A decision about which entitlements the insurer will provide to an insured; 
A decision about the level of any entitlements to be provided; 
Any decision necessary to enable the making of a decision described in any of paragraphs a) to d). 
Having regard to that definition of “decision” it is clear that the respondent's letter of 30 July 1999 was a decision letter as it notified the appellant as to whether or not the Corporation would provide entitlements for him. Furthermore, the letter was quite clear that it was a decision in relation to entitlements in respect of his back injury and it was in respect of the back injury that he was considered to be no longer eligible for entitlements. 
Having regard to the background facts as I have narrated them, it is clear that the purpose of the letter of 7 September 1999 was to advise of the fact that the Corporation was not able to restart compensation in respect of his asbestos claim, as had been intimated at the meeting. The fact that it mentions the previous declineature of entitlements on his back claim and of the appellant's right of review of that decision, I find, is simply declaratory of the state of affairs that had been created by the respondent's decision letter of 30 July. 
The decision within the meaning of the Act had been made by that earlier letter and there was no new decision in relation to that matter by the letter of 7 September. It was at most declaratory and was simply stated in passing, whereas the main purpose of that letter of 7 September was to advise about the fact that compensation could not be commenced in respect of his asbestos claim without further consideration. 
One of the principal decisions of this Court in relation to the question of whether a decision giving rights of review has in fact been made or when such a decision must be taken to have been made, was that in the decision in Hull (249/97). The statement made in relation to the facts of the Hull case are relevant to this appeal, where it was stated as follows: 
“The contents of the letter did not affect the status or entitlements of the claimant under the Act. It was purely explanatory and advisory of the position which had been determined or the conclusion which had been reached in July 1996. There can only be one decision at any time on any particular claim or entitlement under the Act. When that decision has been made, that is it until such time as it may be revoked, revised or amended whereupon it becomes a new decision or as the Corporation is known to describe it, a fresh decision. ”
I find that the definition of “decision” in the present Act reinforces the correctness of the principles first enunciated in Hull. The decision affecting the appellant's entitlements was made on 30 July 1999 and no new decision affecting the appellant's right to entitlement was made in relation to the back claim by the subsequent letter of 7 September 1999. 
For the foregoing reasons therefore the Review Officer was correct to determine that she had no jurisdiction to hear the appellant's application for review of the decision to cease entitlements in relation to his back injury. This appeal is therefore dismissed. 

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