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Accident Compensation Cases

Ostrovsky v Accident Compensation Corporation (DC, 30/01/06)

Judgment Text

RESERVED DECISION OF JUDGE J CADENHEAD 
Judge J Cadenhead
The Issue 
The issue in this case is whether or not I have jurisdiction to entertain the appeal. 
Background of Facts 
[1]
In late 2004 the appellant lodged a claim for cover with the Accident Compensation Corporation for medical misadventure. A decision was subsequently issued by the Corporation on 17 December 2004 declining the claim. The appellant applied for a review. 
[2]
A review hearing was conducted on 19 April 2004. The reviewer issued a decision on 13 May 2005 quashing the Corporation's decision. The reviewer directed the Corporation to undertake further investigation and to issue a new decision with fresh review rights. The Corporation proceeded to further investigate the appellant's claim for cover. On 26 August 2005, the Corporation wrote to the appellant to advise that despite further investigation, the Corporation again declined the appellant's claim for cover. Rights of review were provided in the decision letter. 
[3]
Rather than lodging a review application, the appellant filed an appeal in the District Court in September 2005. The Notice of Appeal, dated 19 September 2005, identifies that the decision under attack is that of the Corporation's decision of 26 August 2005. 
Legislation 
[4]
Section 149(1) of the Injury Prevention Rehabilitation and Compensation Act 2001 reads: 
“A claimant may appeal to a District Court against — 
(a)
A review decision; or 
(b)
A decision as to an award of costs and expenses under s 148. ”
[5]
That is the sole appellant jurisdiction given to the District Court. An appeal cannot be brought directly from the primary decision issued by the respondent. The appeal can only be brought from a review decision or from an award of costs made at review. 
Decision 
[6]
The appellant erroneously did not apply for a review of the respondent's primary decision of 26 August 2005. It was a genuine error on his part and that is conceded by counsel for the respondent. The appellant accepted that at the hearing in front of me. Really, the appellant should now apply to review the primary decision of the respondent. But it is not for me, but as the appellant may be out of time, I express a view after having heard the appellant that there could well be extenuating circumstances to enable him to bring a late application for review. For the reasons that I have given, I have no jurisdiction to hear this appeal and the appeal is struck out. There is no order as to costs. 

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