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Accident Compensation Cases

Palmer v Accident Compensation Corporation (DC, 05/11/12)

Judgment Text

DECISION OF JUDGE M J BEATTIE 
M J Beattie Judge
[1]
In this case, at the time the matter in issue in this appeal came before me for hearing, both Mr Palmer and Mr Cahn were in agreement that the respondent's letter of 7 September 2011, which was the purported decision letter, was not in fact a decision within the meaning of the Act, and both parties were desirous of having a decision of this Court which acknowledged that fact. 
[2]
The parties are now desirous of having a judgment from this Court which confirms that the respondent had not issued a reviewable decision by its letter of 7 September 2011. 
[3]
The background facts relevant to the matter in issue may be stated as follows: 
The appellant has cover under the Act for two separate hand injuries suffered by him, the later one being in November 2004. He is accepted as being incapacitated and is in receipt of weekly compensation and other entitlements in respect of his covered injuries. 
In October 2010, the appellant also obtained cover for a mental injury arising from sexual abuse which had occurred during his youth, the specific cover being identified as Post Traumatic Stress Disorder. 
In or about July 2011, the appellant sought to have his weekly compensation entitlement transferred from his covered physical injuries claim to that of his sensitive claim cover. 
As a consequence of that request from the appellant, the respondent sought the opinion of Dr J Collier, Specialist Psychiatrist, as to the nature and extent of the appellant's sensitive injury and whether it would also amount to an incapacitating condition. 
By letter dated 27 July 2011 the respondent requested the appellant to attend on Dr Collier for an assessment and where an appointment had been made for 16 August 2011. 
On 16 August 2011 the appellant duly attended Dr Collier's chambers at the requested time, but it is the case that he only remained there for some five minutes and at which time he advised Dr Collier that he had no intention of taking part in any sort of assessment, and having said that he departed Dr Collier's chambers. 
Dr Collier had in fact been provided with a significant amount of documentation relating to the appellant's background, and despite not examining the appellant he nevertheless provided a psychiatric assessment report based on the information which he had. In his report to the respondent he noted the situation of the appellant not agreeing to be seen and examined and he gave a review of the appellant's situation. 
On 7 September 2011, the respondent issued two letters to the appellant. The first was a letter explaining that before the respondent could consider a request to transfer weekly compensation from his physical injury claim to his sensitive claim, the respondent required further information as to his condition arising from his mental injury, and that it was required to obtain a report from a qualified psychiatrist, hence it had requested such a report from Dr Collier. 
The letter did not in fact take issue with the appellant for his refusal to be examined by Dr Collier, and the thrust of the letter was simply to advise that the situation could not change without the necessary specialist supporting evidence. 
That letter also identified that the appellant had spoken with the team manager of the Sensitive Claims Unit and that he had requested that a decision be issued declining entitlement to weekly compensation. It also stated that if the appellant agreed to proceed with the psychiatric assessment, ACC would continue to investigate his eligibility for weekly compensation on his sensitive claim. 
As a result of that discussion with the appellant, the respondent did also issue another letter dated 7 September 2011, in which it advised that the appellant was not entitled to weekly compensation on his covered mental injury by reason of the fact that there was insufficient medical evidence to confirm his incapacity. The letter then advised that if the appellant reconsidered his decision about being examined, the respondent would arrange for an assessment to be carried out. 
It is that letter which the appellant took to review and where the Reviewer must be taken as having accepted that it was a decision within the meaning of the Act, and ruled that the respondent's decision was correct because of the appellant not having complied with the respondent's request to attend a psychiatric assessment. 
[4]
In his written submissions on behalf of the respondent, Mr Cahn had asserted that the respondent had not made a decision within the purposes of the Act and he submitted that the Reviewer had no jurisdiction to consider the matter, and he requested that this Court modify the Reviewer's decision accordingly. 
[5]
As earlier noted, the appellant accepts that situation and is not seeking to have the respondent's purported decision of 7 September 2011 overturned. 
[6]
As earlier noted, both parties do not seek to have a decision on any purported substantive issue arising from the respondent's letter of 7 September 2011, and I agree that from a purely legal perspective, that letter cannot be determined as being a decision within the meaning of the Act, as it was simply asserted by the respondent that it did not have sufficient medical evidence upon which to consider the appellant's claim for transfer of weekly compensation entitlements, and the second letter of 7 November 2010 was solely written for, and at the request of the appellant, for reasons which are really not able to be identified. 
[7]
Accordingly therefore, I rule that the Reviewer did not have the statutory power to consider the respondent's letter from a reviewable decision perspective, as there was in fact no decision within the meaning of the Act which could be considered by way of review. 
[8]
I therefore rule that the review decision be quashed on the grounds that there was no jurisdiction to consider a review, and the correct action of the Reviewer was to have declined jurisdiction to consider the matter raised by the appellant. 
[9]
As a result of this decision, the matters between the appellant and the respondent revert back to the state of affairs which existed at the time the respondent issued its letter of 7 September 2011 to the appellant. 

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