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Accident Compensation Cases

Kelsen v Accident Compensation Corporation (DC, 29/03/01)

Judgment Text

JUDGMENT OF JUDGE A W MIDDLETON ON THE PAPERS 
Judge A W Middleton
[1]
I have received submissions from Dr D S C Devadhar, advocate for the appellant, and from Mr C Richards, counsel for the respondent, with the request that I issue a decision on the papers. 
[2]
The issue on appeal is whether the appellant is entitled to a decision in his favour pursuant to s 66 of the Accident Insurance Act 1998 that he is entitled to cover for a work-related infection of leptospirosis. 
[3]
The background to the appeal is that the appellant applied for cover in May 1999 for infection by leptospirosis. On 21 June 1999 the respondent declined the application and the appellant applied for a review of that decision. The Reviewer issued her decision on 16 November 1999 quashing the respondent's decision declining cover with the conclusion: 
“I therefore quash ACC's decision and direct that the Corporation carry out further investigation. This further investigation is to include a report from an appropriate specialist addressing the requirements of s 7(1) of the 1992 Act. ACC shall then issue a new decision that will have rights of review. All the information presently available should be referred to the specialist. ”
[4]
On 12 March 2000 Dr Devadhar, as advocate for the appellant, wrote to the respondent claiming that the appellant was entitled to a decision in his favour pursuant to ss 65 and 66 of the 1998 Act on the grounds that the respondent had failed to issue a decision within two months of being instructed to do so by the Reviewer. 
[5]
On 23 May 2000 the respondent notified the appellant that his application for cover by default was declined on the grounds that the respondent was required by the Reviewer to issue a new decision which would be a decision under the 1992 Act, and that ss 65 and 66 of the 1998 Act did not apply to the appellant. The appellant applied for a review of that decision. 
[6]
On 26 June 2000 the respondent issued a new decision which accepted that the appellant had cover for work-related infection by reason of the onset of leptospirosis. That decision was made on the basis of the additional reports obtained by the respondent as a result of the direction of the Reviewer. 
[7]
The appellant's application for review was heard on 2 August 2000 and was unsuccessful. The Reviewer concluded that the time constraints of the 1998 Act did not apply to an investigation as to cover under a claim lodged under the 1992 Act. It is against that decision which the appellant now appeals. 
[8]
Dr Devadhar has provided lengthy submissions which are somewhat difficult to follow, but from which I conclude that his principal submission is that the decision of the Reviewer issued on 16 November 1999 constituted a “new decision” which, as it was made after 1 July 1999, brought the appellant's claim within the provisions of the 1998 Act. He submitted that the intention of s 422 of the 1998 Act supported that conclusion. He submitted further that as no new decision was issued by the respondent within two months of the Reviewer's decision, the appellant was entitled to the benefit of ss 65 and 66, and a decision should be made in his favour. 
[9]
Mr Richards submitted that the decision of the reviewer was correct and that the whole issue requires determination under the provisions of the 1992 Act. 
Decision 
[10]
The law which applies to this appeal is: 
[a]
Section 65 of the 1998 Act which states — 
“65 Steps insurer takes to action complicated claims 
(1)
This section applies to — 
(a)
A claim for personal injury caused by a work-related gradual process, disease, or infection
(b)
A claim for personal injury caused by medical misadventure
(c)
A claim to which section 61(2) applies that is not declined on the ground of lateness. 
(2)
The insurer must take the following steps as soon as practicable, and no later than 2 months, after the claim is lodged: 
(a)
Investigate the claim — 
(i)
At its own expense; and 
(ii)
To the extent reasonably necessary to enable it to take the following steps in this subsection; and 
(b)
Either — 
(i)
Make its decision on the claim and give notice of it under section 72; or 
(ii)
Decide that it cannot make its decision on the claim, or any other decision, without additional information, and tell the insured of the extension, which must not exceed 2 months, that will be required. 
(3)
The insurer must take the following steps as soon as practicable, and no later than the expiry of the extension: 
(a)
Make a reasonable request to the insured, or decide to make a request to another person, for the additional information; and 
(b)
If the insurer proposes to make a request to another person for the additional information, tell the insured about the making of the request and its nature; and 
(c)
Make its decision on the claim and give notice of it under section 72. 
(4)
The insurer and the insured may agree to further extensions after the extension referred to in subsection (3), and that subsection applies to any further extension, but the insurer's decision on the claim must be made within 9 months of the claim being lodged. ”
[b]
Section 66 which states — 
“66 Failure to meet time limits, or to decide, is decision to accept 
(1)
At the time when an insurer fails to comply with a time limit under section 64 or section 65, whichever applies, the insured has a decision that the insurer has accepted the claim
(2)
An insurer to which subsection (1) applies must tell the insured— 
(a)
That the time limit has expired without the insurer having made a decision; and 
(b)
That the effect is that the insured has a decision that the insurer has accepted the claim. ”
[c]
Section 422 which states — 
“422 Claims for cover lodged but not yet determined under former Acts 
(1)
Subsection (2) applies to a claim for cover for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982, and a claim for cover for personal injury within the meaning of the Accident Rehabilitation and Compensation Insurance Act 1992, if the claim— 
(a)
Is for personal injury suffered before 1 July 1999; and 
(b)
Is lodged with the former Corporation before 1 July 1999; and 
(c)
Is not determined before 1 July 1999. 
(2)
The manager must determine the claim for cover under the Accident Rehabilitation and Compensation Insurance Act 1992, unless subsection (3) applies. 
(3)
Subsection (4) applies to a claim for cover for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982, if the claim— 
(a)
Is for injury suffered before 1 July 1992; and 
(b)
Was lodged with the former Corporation before 1 October 1992; and 
(c)
Was not determined before 1 July 1999. 
(4)
The manager must determine the claim for cover under the Accident Compensation Act 1982. ”
[d]
A claim is defined in s 13 as — 
‘Claim’ means a claim under s 54. ”
[e]
Section 54 states — 
“By virtue of s 422 as the appellant's application for cover was lodged before 1 July 1999 in respect of a personal injury which occurred between 1 July 1992 and 30 June 1999 which application had not been determined before 1 July 1999, was required to be determined by the Manager under the 1992 Act. ”
[11]
I do not accept Dr Devadhar's submission that the revocation by the Reviewer constituted a determination of the claim before 1 July 1999. I consider that the respondent had made a decision on cover prior to 1 July 1999 and that the subsequent revocation of that decision by the Reviewer did not amount to a determination on the issue of cover but only a deferral for reconsideration on receipt of new reports. I consider that the requirements of s 422 make it clear that an application for cover has to be determined according to the legislation applicable at the time when the application is lodged. 
[12]
I consider that the finding of the Reviewer was merely that the respondent was required to reconsider its earlier decision after it had obtained further reports as to the appellant's medical condition. It was only after those reports were obtained that the appellant would be in a position to make a determination on the issue of cover, and this very clearly falls within the requirements of s 422 which requires the issue to be determined under the 1992 Act. 
[13]
In addition, s 65 of the 1998 Act refers to a “claim” which is defined in s 13 of the 1998 Act and specifically refers to claims made under s 54 of the 1998 Act. There can be no doubt that on that basis the appellant's claim is not a claim under the 1998 Act, but was an application for cover lodged in May 1999, for which a decision was issued in June 1999. 
[14]
While Dr Devadhar has referred to the decision of the Estate of S B v ARCIC, (High Court Wellington number AP 393/97), I agree with Mr Richards' submission that that decision has no application in respect of the issue before the Court in this appeal. The issue in that case was an entitlement to interest under s 72 of the 1992 Act in respect of arrears of weekly compensation paid after 1 July 1992, but had accrued over a period up to that date. While Dr Devadhar submits that that is authority for the proposition supporting his contention that the 1998 Act can be invoked in support of this appellant's claim, I do not consider that that was the finding by the High Court in the Estate of S P. The Court did not hold that s 72 of the 1992 Act had any effect for matters which arose before it came into force on 1 July 1992. 
[15]
Accordingly, for the reasons I have set out, the appeal is dismissed. 

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