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Accident Compensation Cases

Green v Accident Compensation Corporation (DC, 29/03/06)

Judgment Text

Judge M J Beattie
The appellant has lodged an appeal to this Court against a decision of a Review Officer given on 22 July 2003. 
The essence of that review decision was that the Reviewer found that he had no jurisdiction to review the primary decision of the respondent by reason of the fact that the appellant's application for review of that primary decision had been lodged outside the three month time limit prescribed by Section 135 of the Act. 
The substantive issue which the appellant was seeking to review was the respondent's decision of 12 February 2003 declining to grant cover to the appellant for personal injury by medical misadventure. 
It is the case that when the appellant lodged her application for review of that decision, the respondent itself did not consider the late filing of the application for review, nor did it consider any extenuating circumstances that may have affected the appellant's ability to meet the time limit for the lodging of the application for review as contemplated in Section 135(3) of the Act. 
The first time the application for extension of time by virtue of extenuating circumstances was considered was by the Reviewer rather than by the respondent itself. 
Following the decision of this Court in the appeal of Knight (Decision 193/05), it has been determined as a matter of law that the Respondent Corporation ought to have made a primary decision regarding any extenuating circumstances pertaining to the late application for review, a course of action it did not take in this particular instance. 
Accordingly, the present appeal cannot achieve any object that the appellant may seek as it is the case that the respondent must, in the first instance, consider whether or not the appellant's application for review of the substantive issue should be considered by virtue of there being extenuating circumstances which brought about the late filing of her application for review. 
In the light of the above, I direct that the appellant's application for review of the respondent's primary decision of 12 February 2003, be reconsidered by the respondent and that it make a primary decision as to whether or not the appellant can make out a case of “extenuating circumstance” within the meaning of Section 135(3) of the Act. 
Before so considering the matter afresh, I direct that the respondent seek any further submissions or evidence from the appellant or her representative on any matters which may bear on the question of extenuating circumstances as contained in Section 135(3). 
If the respondent does determine that the appellant has made out a case of extenuating circumstances, then it would be the case that the substantive issue arising from the respondent's primary decision of 12 February 2003, would then be considered by way of review in the usual manner. In the event that the respondent declines the appellant's request for an extension of time then that would be a decision which the appellant could, if she so elected, take on review in the usual way that reviews are initiated and concluded. 
Arising from my direction above, it is a necessary corollary that the present appeal lodged under Al 402/03 be dismissed. Such dismissal does not affect the appellant's substantive rights and is purely for administrative efficiency. 

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