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Accident Compensation Cases

Herman v Accident Compensation Corporation (DC, 22/02/05)

Judgment Text

Judge J. Cadenhead
It became apparent during the submissions of the appellant and the respondent that the provisions of s 135 of the Injury, Prevention, Rehabilitation, and Compensation Act 2001 applied to the facts of this case. 
That being the case, an issue that arose for determination at the review hearing was whether or not there were extenuating circumstances for the late application for review pursuant to s 135(3) of the legislation. 
It was apparent that the appellant in this case would have to deal factually with the aspect of the lengthy delay between 3 May 2002, that is when the 90 days expired, to the date on 22 July 2004, which grounded the present application. 
Ms Brock argued extenuating circumstances. However, statements from her could not suffice. It was necessary that hard evidence should be given by the appellant, and if necessary, the doctor. 
All counsel agreed that this issue was best sent back for determination by a reviewer. 
At the same time, it was felt that in order to avoid further delay and costs, the review officer should also consider the merits of the appellant's claim. In taking this form of procedure, it was still necessary to consider the delay point, and whether or not the appellant could show extenuating circumstances. The merits of the claim could also impact as a factor on that particular issue. 
By consent of both parties I allow the appeal and remit the issues back to the review officer for further hearing. 
The appellant is entitled to costs of $500 plus disbursements. 

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