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Accident Compensation Cases

Essen v Accident Compensation Corporation (DC, 21/04/08)

Judgment Text

Judge P F Barber
The Issue 
The issue is whether an ACC letter to the appellant dated 28 November 2006, with a form of statutory declaration attached, is a decision in terms of the Injury Prevention, Rehabilitation and Compensation Act 2001. If not, there is no jurisdiction for review or appeal. The appellant has an accepted work-related gradual-process injury claim registered with ACC. 
Particular background to this case is that, due to allegations against the appellant by a former business associate, ACC conducted a fraud inquiry (including surveillance and interviews) about the appellant's continuing entitlement to weekly compensation. It was alleged the appellant had made false statements, wilful omissions, and wrongly used a document for pecuniary advantage. Inter alia, he was alleged to have misled his case managers and not disclosed activities, abilities, or income generation. 
The Reviewer's decision (now appealed from) was in respect of four separate applications for review filed in relation to the said 28 November 2006 ACC letter which stated: 
“Dear Mr Van Essen 
Statutory Declaration 
Section 72 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 requires you to furnish to the Corporation, relevant information when reasonably required to do so and in the form of a Statutory Declaration if necessary. 
The information we seek is included in the attached Statutory Declaration and the request is made pursuant to section 72(2) and (3) of the IPRC Act 2001. 
In accordance with this section, I would ask that you read through the Statutory Declaration and provide the requested answers to each question. Could you please then have the document sworn in accordance with the Oaths and Declarations Act 1957 and return the same to our office by Wednesday the 13th of December 2006. 
In the event that you unreasonably refuse or decline to provide this information the Corporation may decline, pursuant to section 117 of the Injury Prevention, Rehabilitation, and Compensation Act 2001, to provide any further statutory entitlement to you until such time as you comply with this requirement. 
Should you wish to discuss this please contact Jude Kendall Senior Examining Officer on 03-962-9212. 
Yours sincerely, 
J K Clark 
Examining Officer 
Risk, Assurance & Fraud ”
The four review applications generated in consequence of this letter were set out by the Reviewer (Mr W L Shirley at Dunedin) as follows: 
“Review 49786 
Reviewing Mr Clark's decision that he claims he may cut my entitlements for not completing the sent statutory declaration which is meant to be a declaration done under section 72. The declaration contains false statements that Mr Clark wants me to sign. Mr Clark has not stipulated what entitlements that are to be affected. 
Review 49787 
Mr Clark making a decision and threatening to cut my entitlements under section 117 if I don't complete the declaration. The document is not related to the corporation or the claim. The document is a personal vendetta by Mr Clark towards me. Legislation does not state I must fill in a declaration that contains irrelevant information for the corporation to administer the claim. 
Review 49788 
Mr Clark has made a decision that I am fully unfit for work. This is contrary to medical certification that is supplied regularly that I am able to work 10-14 hours per week. 
Review 49789 
Mr Clark's claim that I have been in receipt of income as per section 6 of the Act. (copy enclosed) ”
The Reviewer's decision was issued on 16 April 2007 and his reasoning reads: 
The sole issue I must consider is whether a decision has been made in accordance with the provisions of the IPRC Act 2001 which is capable of review. 
The High Court Decision in Weir held that an IRP was reviewable, not because there was an independent right of review, but because it was a decision on the claim for the purposes of section 134(1)(a). 
Judge Cadenhead in the District Court in Smith (305/2004) believed that Weir had clarified the situation in that administrative issues and requests did not amount to a decision within the meaning of section 6 of the legislation. He said that whether a decision had been needed to be determined in the factual context and circumstances. Judge Cadenhead held in Smith that a letter issued by ACC was at most an administrative request by the respondent for the appellant to submit to further medical examinations to enable a future decision to be made. 
I have taken into account the various issues raised by MR Forster and the submissions of ACC. 
It is my belief that the letter of 28 November 2006 is a request for information and as stated in the decision in Smith, that ‘is an administrative step’
I am not persuaded that a decision has been issued in terms of the legislation and on that basis therefore, I decline jurisdiction in all reviews lodged by Mr Van Essen in respect of the letter of 28 November 2006. ”
I agree with the Reviewer's decision. 
Four notices of appeal to this Court have been lodged, all of which have been grouped under the same appeal reference number (AI 179/07). The same aspects of the Reviewer's decision are identified in each appeal, and the grounds in each case are identical. The appellant seeks a decision from this Court regarding four matters asserted to be matters of law. These are identified in Part 3 of each of the appeal documents which reads as follows: 
It is respectfully requested that the Court makes a decision regarding four matters of law: 
Is it a requirement of the Act that ACC must disclose the relevant documents prior to the review hearing so that submissions can be made regarding the content of those documents? 
Is it a requirement of the Act that the reviewer, duly assigned by the Corporation, takes an investigative approach? 
It is a requirement of the Act that the reviewer, duly assigned by the Corporation, complies with the principles of natural justice? 
Is it a correct for the reviewer to interpret the Act in such a manner as to decide that disclosure is not required? 
It is respectfully requested that the Court orders ACC to disclose the relevant documents so that submissions can be made regarding the issue of whether or not a reviewable decision was made. 
It is respectfully requested that the Court makes a decision, as a matter of fact, as to whether the reviewer was right to decline jurisdiction without investigating or declining or complying with the principles of Natural Justice. 
It is respectfully requested that the Court then determines the substantive matter regarding the actions and omissions of the Corporation, its agents and subsidiaries. ”
The earlier substantive portions of each Notice of Appeal read: 
The appellant appeals against the following aspects of the decision: 
The decision as to whether or not the reviewer has jurisdiction. 
The decision to issue a decision without hearing from the appellant. 
The decision not to order disclosure. 
The appellant bases this appeal on the following grounds: 
ACC has failed to comply with the provision of the Service Agreement between ACC and DRSL by refusing to supply the relevant documentation. 
ACC has refused to disclose the relevant documentation necessary to explain the decisions. 
ACC knowingly withholds the relevant documentation, with intent to deny access to justice, by misinterpreting relevant legislation. 
The procedure as agreed to by the reviewer at the case conference was disregarded by ACC and the reviewer did not enforce the directions prior to the review hearing. 
The decision maker refused to attend the hearing and give evidence. 
The ACC Business Unit whose actions and omissions were the subject of the review hearing failed to attend the review, and instead, the local branch, who stated that they had no knowledge of the matters were instructed to attend the hearing. 
The Reviewer has failed to take an investigative approach. 
The Reviewer has failed to comply with the principles of Natural Justice. 
The Review decision completely ignores the evidence given at the hearing. ”
Appellant's Submissions 
The appellant's submissions acknowledge that they relate only to what is described as the first issue, namely, that of jurisdiction. However, the appellant submits that the question is “Whether the Court has jurisdiction to hear matters surrounding the unfair and illegal actions of the respondent, particularly, the respondent's fraud unit”
The submissions assert that it cannot be correct that the letter does not amount to a reviewable decision, or that a Reviewer or Court has no jurisdiction to review the letter, as if it were made in a vacuum whereby the appellant is left with no remedy. 
The appellant puts it that it is not merely what is stated in the letter which is important, but that ACC made decisions that the appellant was not entitled to weekly compensation, “yet failed to inform the appellant of those decisions as is required by the Act”. It is also submitted by the appellant that “ACC's various decisions have affected his rehabilitation, which is an entitlement”
The appellant suggests that, at some date before late 2006, somebody within the respondent's structure “made a decision that the appellant had no entitlement to weekly compensation, yet failed to inform the appellant. Judging from the number of people involved, it is clear that the decisionmaker informed others of such”
From this assertion, it is submitted for the appellant that ACC had made a decision that he was not entitled to weekly compensation. 
It is then submitted for the appellant that the actions of ACC in respect of the alleged decisions must be considered in context. It seems to be presumed that a decision as to compensation was made by ACC, and it is also asserted that the appellant was never notified of this decision. Which decision the respondent is alleged to have made is not identified or made clear. Issue is taken with the respondent's decision to seek information by way of a statutory declaration in the 28 November 2006 letter. 
The appellant's submissions note that the review applications were dismissed for want of jurisdiction, but also claim that “The factual context and circumstances were not available at the Review Hearing, so either the Reviewer did not consider them, or they were supplied to him in secret by the respondent as often occurs”
The appellant asserts that there must be some kind of remedy in respect of a letter such as that dated 28 November 2006. 
The directions and relief sought by the appellant are identified as that, inter alia, the Court determine “That there are sufficient grounds to investigate whether ACC made a decision, and that as part of such investigation, the ACC staff and contractors … be made available to give evidence to the Court explaining their actions … ”
The appellant requests a decision as to a matter of fact, namely, whether the reviewer was right to decline jurisdiction without investigating or, it is alleged, complying with the “Principles of Natural Justice”
Finally, the Court is requested to set down a full hearing to examine a number of identified “decisions” of the respondent, including a decision that the appellant was not entitled to weekly compensation. 
At one stage, the appellant seemed to contemplate seeking that the Court issues subpoenas to a number of ACC and Police Officers and others, but there is no dispute of fact. 
The Law 
A “decision” or the “Corporation's decision” are defined in s 6 of the IPRC Act 2001 and may include a decision on cover, a decision about the classification of a claimant's personal injury, a decision whether or not the respondent will provide any entitlements, a decision about which entitlements will be provided, or a decision about the level of any entitlements to be provided. A decision may also include a decision relating to the levy payable by a particular levy payer — which cannot be relevant in this case context, or to a decision made under the Code about a claimant's complaint. 
The review and appeal provisions in the Act enable a claimant to seek a review of any decision, as so defined, from which decision there is a right of appeal to the District Court (and further limited appeal rights thereafter as well). 
It is settled law, in accordance with the decisions such as that of Weir that administrative decisions issued, and requests made, do not amount to decisions within the meaning of s 6 of the IPRC Act. 
Section 72 of the Act sets out the responsibilities of claimants who receive entitlements. It provides as follows: 
“72 Responsibilities of claimant who receives entitlement 
A claimant who receives any entitlement must, when reasonably required to do so by the Corporation,— 
give the Corporation a certificate by a registered health professional or treatment provider that deals with the matters and contains the information that the Corporation requires: 
give the Corporation any other relevant information that the Corporation requires: 
authorise the Corporation to obtain medical and other records that are or may be relevant to the claim: 
undergo assessment by a registered health professional specified by the Corporation, at the Corporation's expense: 
undergo assessment, at the Corporation's expense: 
co-operate with the Corporation in the development and implementation of an individual rehabilitation plan: 
undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the Corporation's expense: 
participate in rehabilitation. 
Every such claimant must give the Corporation a statement in writing about any matters relating to the claimant's entitlement, or continuing entitlement, to an entitlement that the Corporation specifies, and must do so whenever the Corporation requires such a statement. 
If the Corporation requires the claimant to do so, the claimant must make the statement referred to in subsection (2) as a statutory declaration or in a form supplied by the Corporation. ”
Section 117(3)(a) of the Act permits the respondent to suspend, cancel or decline entitlements and, specifically, that: 
“The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to — 
comply with any requirement of this Act relating to the claimant's claim; or …  ”
These provisions were considered by Judge Cadenhead in Nesbit, 130/2006. Citing the Court of Appeal decision in ACC v Peck (CA 10/04, 17 December 2004) and R v Thomas (CA 71/00, 7 June 2001), His Honour said that: 
“It is clear that the right to an entitlement is conditional upon a claimant acting in accordance with reasonable requirements. The power to decline to provide an entitlement, which is conditional on a person entitled acting unreasonably, is an enforcement power given in the public interest so that the scheme may be properly administered. ”
In Nesbit, the appellant had refused to answer questions from ACC relating to the management of his claim and the assessment of entitlements and there was a series of questions posed in a letter sent to that appellant by ACC. The appellant had refused to answer questions on the grounds that to do so might be incriminating, among other things. Judge Cadenhead upheld the Reviewer's decision that the ACC had been entitled to suspend entitlements. Judge Cadenhead noted that ACC did not object to the appellant relying on a privilege against self incrimination, but had founded its decision to suspend entitlements upon the appellant's failure to answer its request for relevant information. He noted that the privilege against self incrimination was one that the claimant could waive, the election being his own. His Honour said that “I do not see how by electing to insist upon a privilege, that provides a reasonable excuse to the appellant for not answering the information detail sought”. His Honour also noted that: 
“It is not an absolute right to an entitlement, but rather a contingent right. If the appellant was correct that would mean that a person, who had defrauded the system could shelter behind the privilege of self incrimination and continue to receive the benefit: just as the appellant has the privilege of declining to self incriminate, the respondent has the power to insist upon reasonable information from the appellant. It is open for the appellant to waive his privilege and receive the benefits of the scheme: on the facts of this case that election is for him. ”
At paragraph [43] of his decision Judge Cadenhead said that: 
“The respondent cannot compel a claimant to answer questions, and the claimant can always exercise the right of silence on the basis of the privilege against self incrimination. However, this does not prevent the respondent from then suspending a claimant's entitlements under section 117(3), as the issues are separate. ”
Mr Hunt submits that the issue is the narrow one of whether the letter of 28 November 2006 is a decision in terms of the Act and amenable to review/appeal. Despite the extent of the appeal pleadings, the matter has been put to me by both parties on that narrow issue. 
The submission for ACC is that the letter is clearly not a reviewable decision. I agree that it conveys no decision at all. It is a letter which seeks, pursuant to s 72, certain information and requires that information to be provided by way of statutory declaration as the respondent is entitled to do. It also advises the appellant that, in the event that he unreasonably refused or declined to provide the information sought, ACC might decline to provide further statutory entitlements until such time as its requirements were complied with. All that is self-evident so that I agree with those submissions of Mr Hunt. 
The Reviewer stated that he considered the letter in question to be a “request for information” and that this was in the nature of an administrative step. He was correct in that. The considerable submissions addressed to him, which have been repeated in respect of this appeal, are irrelevant to that threshold question of whether a reviewable decision had been issued by ACC; and he was correct to focus on the issue whether the 26 November 2006 letter comprised a decision or not — and hold that it did not. 
Clearly, the letter is not one which affected the appellant's entitlements. Whether the appellant's entitlements were or were not to be affected is a matter which depended upon whether ACC decided that any response, or lack of response, was unreasonable. Furthermore, had ACC decided to suspend entitlements on the basis that there had been an unreasonable failure to comply with the requirements made of the appellant, that would obviously amount to a reviewable decision. 
Pursuant to the letter of 28 November 2006, ACC did not, nor has it issued any decision declining to provide entitlements in reliance on s 117. 
Of course, it is open to ACC to decline to provide entitlements if it is satisfied that the appellant is no longer entitled to them; but that is quite a different enquiry from one based on suspension or cancellation for unreasonable non compliance with ACC requests. 
In terms of some further submissions for the appellant, I note that the said letter cannot be construed as ACC failing to make a decision. The content of the letter was merely a standard inquiry for particular information. If a fraud inquiry is set in train by ACC for a sensible cause, it is nonsense for a claimant to raise that it affects his entitlement to rehabilitation. It is fundamental to the integrity of the accident compensation scheme that proper allegations of fraud be sensibly investigated. 
The application and interpretation of the Code of Claimants' Rights is not an issue before me and, from the evidence before me, is most unlikely to have been breached by ACC. 
The letter in question did not amount to a decision in terms of the Act, and was therefore not capable of review under the review/appeal procedures of the Act. The Reviewer was correct to decline jurisdiction. 
For the above reasons, this appeal is hereby dismissed. 

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