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Accident Compensation Cases

Ali's Home Help Ltd v Accident Compensation Corporation (DC, 19/12/14)

Judgment Text

RESERVED JUDGMENT OF JUDGE L G POWELL 
Judge L G Powell
[1]
The appellant, Ali's Home Help Ltd (“AHH”), has challenged the quantum of ACC levies payable as an employer for the period 1 April 2011 to 31 March 2012. The present appeal was heard at the same time as Vehicle Testing New Zealand v Accident Compensation Corporation1
| X |Footnote: 1
[2014] NZACC 339 
and the submission presented in that case were adopted on the present appeal with the effect that the legal analysis set out in this judgment is identical. 
[2]
As with the Vehicle Testing New Zealand appeal, the calculation of the levies payable by AHH in the relevant period was undertaken pursuant to Part 6 of the Accident Compensation Act 2001 and the Accident Compensation (Experience Rating) Regulations 2011. Together the relevant parts of the 2001 Act and 2011 Regulations set out how the levies of employers like AHH are to be calculated, and provide mechanisms to enable the adjustment of those levies payable to reflect the work-related personal injury experience of those employers. This means that: 
“[a]
If an employer has a lower than average claims experience, it can earn a discount of up to 50% of the current portion of its standard industry-based levy. 
[b]
If an employer has a higher than average claims experience, it can receive a loading of up to 50% of the current portion of the industry based levy. ”
[3]
In order to determine the relevant discount or loading for a particular employer the 2011 Regulations set out a range of calculations that are required to be made to enable a comparison between that employer's peer group and other businesses within a particular levy risk group (the industry size modification), as well as a comparison between the employer and the employer's industry peer group (the experience rating modification). Underpinning those different calculations are the number of qualifying claims of an employer in the relevant experience period which are required to be identified by the Corporation. Qualifying claims are defined for the purposes of the 2011 Regulations as: 
Qualifying claim — 
[a]
Means a claim that — 
(i)
is made under section 48 for a work-related personal injury suffered in the experience period (except for a work-related personal injury described in paragraph (b)); and 
(ii)
is accepted by the Corporation; and 
[b]
does not include a claim made for a work-related personal injury suffered in the experience period that is — 
(i)
mental injury suffered by a person in the circumstances described in section 21; or 
(ii)
personal injury caused by work-related gradual process, disease, or infection that involves exposure to asbestos; or 
(iii)
personal injury caused by work-related gradual process, disease, or infection that results in hearing loss. ”
[4]
Once the number of qualifying claims have been identified, the Corporation is then required to determine in respect of those claims incurred medical expenses of over $500 as well as the total number of days each qualifying claim received weekly compensation in the claims activity period. 
[5]
Once the various inputs are known the base levy for an employer prescribed by s 167(4)(a) of the 2001 Act is then multiplied by the sum of the industry size modification and the experience rating modification. 
[6]
These calculations, and the experience rating adjustment (whether a discount or loading) they produce, are described in levy invoices sent by the Corporation to employers. 
[7]
There is no dispute that the resulting calculation of levies is open to challenge under s 236 of the 2001 Act. Section 236 provides: 
“236
Challenges to levies 
(1)
Any person who is dissatisfied with any decision of the Corporation in respect of any levy paid or payable or claimed to be payable under this Part by that person may seek a review by the Corporation of that decision within 3 months after the person is notified of the decision. 
(2)
However, no right of review exists under this Act in respect of the calculation for the purposes of the [Income Tax Act 2007] of the taxable income of any person [or in respect of the levy payable under section 213(2)(c)]. 
(3)
The entitlements that have been given or are to be given to any person under this Act may not be challenged in any review under subsection (1). 
(4)
A review brought under subsection (1) must be dealt with by the Corporation under Part 5, and that Part (including the provisions relating to appeals) applies with any necessary modifications. ”
[8]
There is clearly significant scope for argument over the calculation of the levies payable by an employer including whether a particular employer has been appropriately grouped with its peers or relevant industry, and indeed whether the various figures are in fact correct. 
[9]
In the present appeal however, the basis for challenge is a narrow one. In challenging the levy assessment carried out AHH has asserted that it is entitled to challenge whether the qualifying claims identified in fact involve work-related personal injuries. The Corporation disputes this on the basis that whether the claims are work-related personal injuries was a matter determined at the time cover was granted to the claimant and not at the time the levies are calculated. The first, and primary, issue to be determined in this appeal is therefore whether AHH can challenge whether qualifying claims are work-related personal injuries as part of a challenge to the levies payable. In addition AHH has also raised an issue with how the initial challenge by way of review was dealt with by the Corporation. There is no dispute that no review took place within three months of the review being sought, but the Corporation argues that there was no deemed decision arising. 
[10]
The two issues to be determined in this appeal are therefore: 
[a]
Whether AHH can challenge whether qualifying claims are work-related personal injuries as part of a challenge to the levies payable? And 
[b]
Did a deemed decision arise and if so what effect does it have? 
Relevant Facts 
[11]
On 29 August 2011 AHH received an estimated invoice from the Corporation setting out the ACC levies payable for the 1 April 2011-30 March 2012 period (“the August invoice”). 
[12]
The August invoice consisted of two parts; the invoice itself, and a schedule entitled “Experience Rating Information 2011/12” setting out the relevant information the invoice was based upon. The invoice identified that the modifications rate for AHH was +44.91% which meant that AHH was required to pay $2.43 per $100 of liable payroll rather than $1.68 per $100 of liable payroll which was otherwise the standard rate of the levy risk group to which AHH belonged during the period. The Experience Rating Information 2011/12 set out the details of the qualifying claims (24), and of those identified which ones had incurred medical payments over $500 (18), and the amount of weekly compensation days paid out in respect of those claims used in the experience rating calculation (2,199 days)2
| X |Footnote: 2
The total qualifying weekly claim days did in fact total 2,816 days but for experience rating only the first 365 days of weekly compensation for each claim is considered. 
. The Experience Rating Information 2011/12 also set out information regarding AHH industry peer groups and levy risk groups as these also formed part of the levy calculation. 
[13]
AHH responded to the August invoice by way of a letter from Sandy McLennon of Wellnz on 31 October 2011. Mr McLennon advised the Corporation as follows: 
“Wellnz on behalf of AHH, wish to review the current experience rating (ER) assessment dated 29/8/11, as our client believes that it (the ER assessment) is incorrect. 
There appears to be several claims that do not meet the criteria for cover as a work-related injury and the allocated costs are incorrect. As a result of this review we ask that ACC review the ER assessment. 
At this stage we also ask that ACC provide a copy of each work injury decision letter and ACC45 for every claim used to make up the ER assessment plus a breakdown of the days of weekly compensation related to the 24 claims identified above and any other information that ACC may refer to during the review. ”
[Emphasis added] 
[14]
The letter attached a further document entitled “Experience Rating” which advised that a claim review had been carried out and noted that all 24 qualifying claims required further investigation. 
[15]
At no point in the letter, or the Experience Rating document was any request made to exclude any of the identified qualifying claims from the Experience Rating Assessment contained in the August invoice. 
[16]
Although no review was set down in respect of the August invoice, within three months as the request for the review, in the meantime the Corporation, acting on new payroll information received from AHH, issued under a covering letter dated 22 December 2011 a “reassessment 2011/2012 estimated invoice adjustment” dated 29 December 2011 (“the December invoice”) which replaced the August invoice. 
[17]
The December invoice reduced the levy payable by AHH significantly but the qualifying claims, qualifying medical claims and weekly compensation days were left unchanged. 
[18]
As no specific action had been taken by the Corporation with regard to the review of the August invoice as sought by AHH, on 7 February 2012 Mr McLennon wrote to the Corporation stating that a deemed decision had been made. Mr McLennon recorded: 
“A review application was sent by letter on the 31/10/11. In this application we clearly identified 24 claims that should not have been included in the Experience Rating Assessment. ACC acknowledged the review application and Rangataua Barton sent the information that was requested by Wellnz. 
As ACC us aware a review must be set down within 3 months as per s 146(l)(a), which clearly has not occurred. Furthermore it is clear from the correspondence that we, the applicant, have not contributed to the delay. Accordingly we are seeking a reassessment of the Experience Rating Assessment, excluding the challenged claims, occurs forthwith and any refund paid to Wellnz on behalf of the applicant. Furthermore, we are seeking costs under s 148. ”
[19]
The Corporation responded by letter dated 8 March 2012 in the following terms: 
“You have noted that the application for review sent to ACC on 31st October 2011 was not set down. In this application your client was seeking a revision of the Experience Rating Assessment. You have advised that you consider that there is now a deemed review decision. ACC does not accept this. 
As you are aware ACC revised the Experience Rating Assessment and sent out a new invoice issued on the 29th December 2011 which also had review rights. Please find a copy attached. 
The effect of this new decision was that the original Experience Rating Assessment, which was under review, ceased to have effect. As such there was no live issue for a reviewer to determine and therefore there can be no deemed decision. 
If your client disagrees with the calculation of levies in the letter of 29 December your client is entitled to seek a review of that. ”
[20]
AHH went ahead and sought a further review on the grounds that “24 of the claims that the Corporation took into account are not work-related claims and so in law cannot be considered by the Corporation in determining [AHH's] levies”, and sought that the December invoice be set aside (“the second review”). 
[21]
Notwithstanding the position taken by AHH with regard to the 24 qualifying claims that it sought to challenge in the second review, following the hearing before me counsel have confirmed in 23 of the 24 qualifying claims the Corporation “issued under s 64(2) of the [2001] Act, a notice of its decision to treat the claim as a work-related personal injury”. In relation to the remaining qualification claims that relate to a claim by Carolyn Drewery the memorandum recorded: 
“5.
In the case of Carolyn Drewery there is no record of any such notice under s 64(2) of the Act having been given, but there is evidence of telephone contact by ACC with the employer about the injury generally. The attachments to this memorandum provide a record of ACC having telephoned the employer to discuss the injury soon after it occurred (attachment 1) and of having liaised with the employer over the employee earnings certificate (attachments 2, 3 and 4). 
6.
Counsel record their respective views on the position as follows: 
(a)
counsel for AHH says that, in the case of the Carolyn Drewery claim and based on the documentation to hand it would appear that, while there has been communication between ACC and the employer, there has not been compliance by ACC with the Good Health Wanganui decision and that ACC needs accordingly to issue a decision regarding that claim as required by that decision. 
(b)
counsel for the Corporation says that this process error does not change Acc's primary point that a claim that an injury suffered is not a work injury is not ‘a decision of the Corporation in respect of any levy’ in terms of s 236(1) of the Act and is not a decision made under Party 6 of the Act. ”
[22]
The second review was subsequently dismissed by reviewer Mr R Woodhouse on 3 October 2012 and AHH appealed. 
Issue 1 — Whether AHH can challenge whether qualifying claims are work-related personal injuries as part of a challenge to the levies payable? 
[23]
As noted in [2] above levies are determined in accordance with Parts 6 of the Act and the 2011 Regulations, with challenges to levies being made pursuant to s 236 of the Act. 
[24]
A review pursuant to s 236(1) does not permit any challenge to entitlements given to any person (s 236(3)) and is to be dealt with under Part 5 of the Act (s 236(4)), which requirement is then reflected in s 134(5). 
[25]
Whether a claim is a work-related personal injury is however a matter determined not at the time levies are calculated but is rather a decision made at the time cover is granted to a claimant. For the purposes of the 2001 Act a “work-related personal injury” is defined in s 28 and whether a claim is or is not a work-related personal injury is a matter for the Corporation to determine pursuant to either s 56 (in relation to claims other than complicated claims for cover) or s 57 (in relation to complicated claims for cover). Having determined that issue then in addition to notifying its decision to the claimant then pursuant to s 64(2) of the Act: 
“64
Corporation must give notice of decisions 
 
(2)
In the case of a claim for cover for a work-related personal injury to an employee, the Corporation must give notice of its decision on the claim for cover to every employer entitled to apply for a review of that decision. ”
[26]
Decisions made by the Corporation which relate to cover and entitlements including whether a claim is a work-related personal injury can then be reviewed under s 134 of the 2001 Act, with s 134(2) and (3) in particular providing: 
“134
Who may apply for review 
 
(2)
An employer may apply to the Corporation for a review of its decision that a claimant's injury is a work-related personal injury suffered during employment with that employer. 
(3)
An employer may not apply to the Corporation for a review of a decision about the entitlements that have been or are to be provided to a claimant who has cover for a work-related personal injury. 
 ”
[27]
An employer wishing to review a decision that a claimant's injury is a work-related personal injury must seek that review within three months of the Corporation giving notice under s 64.3
| X |Footnote: 3
Section 135(2)(f)(ii). There is no power to extend this date as s 135(3) which enables a late application to be accepted on behalf of the claimant if there are extenuating circumstances applies only to claimants for cover, not employers challenging the work-related status of a claim. 
 
The Case for AHH 
[28]
Mr Sharp, as counsel for AHH, submitted that the position under the 2001 Act was in substance no different from the position under the equivalent provisions contained in the Accident Rehabilitation and Compensation Insurance Act 1992 (“the 1992 Act”)4
| X |Footnote: 4
Although experience rating provisions were part of the 1992 Act, there were no equivalent experience rating provisions contained in the Accident Insurance Act 1998, and such provisions were only added to the 2001 Act in 2010. 
albeit that those provisions involved calculations of premiums rather than levies. In particular Mr Sharp submitted that there is no indication that Parliament was intending to change the law when it reintroduced an experience rating system as part of the 2001 Act in 2010 and that there were otherwise “no external indications of an intention to change the law”. As a result in Mr Sharp's submission: 
“74.
The submission is thus made that the law as determined in the cases under the [1992 Act] remain good law in terms of the principles determined: namely that as part of the challenge to an Experience Rating Assessment an employer is entitled to challenge whether the claim upon which the ‘qualifying claim’ is based is in fact a work-related injury and does it arise in the relevant assessment period. 
75.
It is accordingly submitted that ACC's decision in this matter that there was no jurisdiction to challenge the qualifying claims' nature as a work-related injury was wrong, and the appeal against that aspect should be upheld. ”
[29]
In Mr Sharp's submission Their Honours Judge Ongley in Lane Walker Rudkin v ARCIC5
| X |Footnote: 5
[1997] 1 BACR 472 
, Judge Barber in Alstom NZ Limited v ARCIC6
| X |Footnote: 6
[2000] NZAR 337 
and Judge Beattie in Ministry of Education v ACC7
| X |Footnote: 7
[2002] NZACC 56 
all accepted that an employer could challenge a qualifying claim and that the Corporation in the present appeal was simply revisiting arguments made by the Corporation that had already been rejected by this Court. The key authority unpinning Mr Sharp's submission was Judge Ongley's judgment in Lane Walker Rudkin in which His Honour concluded that: 
“Counsel for the respondent submitted that once a ‘work injury’ decision was made and after the time for review has passed without any application for review being made, the decision becomes binding and there is no further opportunity for review. The appellant argues that the decision is binding only for limited purposes and that it does not follow that the appellant has accepted the decision, nor that the decision cannot be challenged if it is adhered to in the course of the Corporation issuing another decision for another purpose. 
I reject the respondent's argument that the appellant is bound by the Corporation's original decision to the extent that it is prevented from questioning that decision. That result could only follow by operation of the statute or by some kind of estoppel. There is nothing in the 1982 Act nor the 1992 Act which renders a decision of the Corporation binding for all purposes if the opportunity of review is not taken. An estoppel is not raised merely by a failure to appeal; Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37, 41. IHas Litigation History which is not known to be negative[Blue] ssue estoppel could prevent further litigation of the point the Corporation, but it has not and so the extent to which the appellant may be bound by an issue estoppel does not have to be considered. 
In this case, the premium loading decision that is under review includes a number of questions, particularly the classification of the claim as a ‘qualifying claims’, the attribution of the claim to the appellant, the calculation of costs relating to the claim and also the attribution of costs to one or more employer. The appellant submits that the only question that cannot be reviewed is the question whether the costs would have been properly applied if the claimant had cover in respect of the injury. 
It would follow that, on the making of a premium loading decision in any particular year, the employer has an opportunity for review of all questions raised in the premium loading decision except questions of entitlement of the claimant to actual payments or rehabilitation provision in the event that the claimant does have cover. It does not follow that the employer would be able to obtain repeated reviews of the accident classification question. The doctrine of issue estoppel will prevent classification questions being re-litigated once they have been decided at review or appeal level. 
The meaning of s 89(4A) 
The limiting words which require definition are: 
‘review of any decision relating to the entitlement under this Act of any person to any payment or rehabilitation or the making of any payment directly or indirectly under this Act in respect of that person. ’
The words ‘directly or indirectly’ must qualify ‘payment’. It would be an ungrammatical construction of the subsection to apply the qualifying words to the word ‘review’ at the beginning of the phrase. I consider that the subsection is capable of permitting a review which has a consequential indirect effect on entitlements. What is prohibited is a review of the entitlement decision. For example, if the Corporation decided to meet costs of vocational rehabilitation, s 89(4A) would prevent the appellant reviewing the Corporation's rehabilitation, s 89(4A) would prevent the appellant reviewing the Corporation's decision concerning the appropriateness of the grant of vocational rehabilitation to the claimant. 
For the reasons that I have set out in this decision, I reach the conclusion that the question of classification of the claim as a qualifying claim may be considered in the course of a review of the accident experience component of premium loading under s 89(4) of the Act and the appellant is not estopped, from having that question determined, by virtue of its failure to exercise review rights in respect of two earlier occasions on which the Corporation issued decisions concerning substantially the same question. Once the classification has been determined by review or appeal, the same question will not be able to be reopened between the same parties in respect of any future premium loading decision by the Corporation. ”
[30]
Likewise Mr Sharp noted Judge Beattie's observations in Ministry of Education v ACC that: 
“[34]
… If that Claims Cost figure is one of the necessary figures to calculate an adjustment, either by credit or debit, then I find that where that adjustment does of itself give a right of review, and there can be no question about that, then in line with the reasoning given in the Lane Walker Rudkin Ltd decision the whole question of the classification of the qualifying claims and claims costs must be open to scrutiny by review. After all the respondent is, in the case of a debit adjustment, seeking further premium payable by the appellant by way of an Experience Rating loading that it has had imposed on it for the relevant year. 
[35]
I do not think there can be any distinction to be drawn between a debit adjustment note and a credit adjustment note as to the extent to which the Experience Rating Assessment can be enquired into as of course it may be contended that the appellant is entitled to a greater credit than that which is given because of other matters which might become apparent when an enquiry is conduct. 
[36]
I am mindful of the fact that s 89(4A) of the 1992 Act excludes any consideration of questions of entitlement to payment or rehabilitation, but as was noted by His Honour Judge Ongley in the Lane Walker Rudkin Ltd decision, there are other matters which can be considered in respect of a qualifying claim besides entitlement. The principle consideration is whether the costs claimed are truly associated with the qualifying claim. It may be that the employee has other injuries sustained in the course of his employment and it is a question of determining what payments should be regarded as qualifying payments and whether in the circumstances it is a qualifying claim and being a claim which would bear the entitlements so paid. This was noted as being a relevant consideration by Judge Ongley and I concur with the views he expressed in that decision. 
[37]
It follows from the foregoing that, like it or not, where the respondent seeks to adjust the Experience Rating Assessment for any particular year it does give rise to the opportunity for the employer to question the entire ERA and not just the particular question or otherwise of the adjustment and have that enquiry limited to the particular matter which the respondent has contended is the reason for the adjustment. It may be that the appellant can establish that the same considerations ought to apply to adjust other qualifying claims and therefore the matter is one which must be at large and be able to be considered by review. ”
[31]
In Mr Sharp's submission the power to review a levy contained in s 231(1) is therefore sufficiently broad so that: 
“55.
On a plain reading of the section then any decision in respect of any levy can be challenged by any person (subject of course to the express limitations placed on it by sections 236(2) and 236(3). 
56.
Decision as defined in the Act includes a decision relating to the levy payable by a particular levy payer. But by definition decision also includes other definitions namely that it can be: 
a)
A decision whether or not a claimant has cover; 
b)
About the classification of the personal injury a claimant has suffered (and the Act refers to a decision about whether an injury is work-related injury or not) 
c)
A decision about entitlements, including whether they will be provided, which will be provided and at which level and 
d)
A decision about a code. 
57.
So if a decision relating to a levy involves and includes other decisions and in particular whether a particular claim that the Corporation is using as a basis for its calculations is a work-related injury or not, then by definition such decision (e.g. whether work-related) is one of the any decision relating to the levy. Subject then to it not being a decision relating to a subject which 232 expressly prohibits being considered, on the clear wording of the section it is one that is up for consideration at review and appeal. ”
[Emphasis in original] 
[32]
In Mr Sharp's submission had this not been the intention the 2001 Act would have provided accordingly, and he noted for example that the discretionary provision of entitlements under s 68(3) of the 2001 Act cannot be reviewed.8
| X |Footnote: 8
Section 134(1A) 
Mr Sharp likewise relied on the fact that the Corporation has a broad discretion under s 237 to revise levy decisions if they are made in error, and that, in his view, supported the argument that an employer should be able to challenge the work-related nature of a qualifying claim. 
[33]
Mr Sharp also argued that to not allow a review of whether a qualifying claim is a work-related personal injury as part of the review under s 236(1) would deprive an employer of a right to a fair hearing. Finally, in Mr Sharp's submission because in his view the Corporation is required to exercise a discretion under Part 6 to treat a particular claim as a qualifying claim for the purposes of Experience Rating it was a matter to be determined under Part 6 of the 2001 Act and therefore open to challenge under s 236(1). 
Discussion and Analysis 
[34]
I have considered the experience rating regimes contained in both the 1992 and 2001 Acts. Although many of the components are similar they are not identical and the 2001 Act must be considered on its own terms. In this regard I note that the submissions made by Mr Sharp that no change could have been intended as between the 1992 Act and 2001 Act regimes ignores the fact that the experience rating regime contained in the 1992 Act was done away with completely with the repeal of the 1992 Act, with no comparable provisions contained in either the 1998 Act, nor indeed the 2001 Act until 2010. It is difficult therefore to see why any new experience rating regime should be interpreted per se in the same way as one repealed 12 year previously. 
[35]
Thus while both the 1992 and 2001 Acts contain mechanisms to enable employers to challenge whether a claim is a work injury (1992 Act)/work related personal injury (2001 Act), and to seek a review of premiums (1992 Act) or levies (2001 Act) this does not mean that the regimes operate in the same way. Certainly as Mr Radich QC for the Corporation noted there are a number of significant differences with how the premiums were calculated under the 1992 Act, with the Corporation retaining a much greater discretion under the Act in determining how to factor in the payments made in respect of qualifying claims in calculating the premium than is now the case under the 2001 Act in calculating the appropriate levy. Despite those differences the issue in the present appeal is whether the status of a work related personal injury claim can be challenged as part of the challenge to a levy, and those broader distinctions between the respective regimes are therefore irrelevant. Instead it is clear from the definition of qualifying claims in the 2011 Regulations and their 1992 Act equivalent, the Accident Rehabilitation and Compensation Insurance (Experience Rating) Regulations 1993 (“1993 Regulations”) that the definition was for all material purposes identical9
| X |Footnote: 9
The difference being the types of claims excluded which is nevertheless specifically provided for and which does not appear to involve any new decision or discretion with regard to how qualifying claims were ascertained, and the 1992 Act also provided a mechanism to approve qualifying claims between relevant companies — see in particular r 6 of the 1993 Regulations. 
. In both the 1993 and 2011 Regulations the qualifying claims were simply work injury (1993 Regulations) or work related personal injury claims (2011 Regulations) that have been both incurred and lodged in the relevant period and adopted by the Corporation, with a number of specified types of claims then excluded from the definition. 
[36]
Likewise, the respective legislative regimes are broadly similar in layout with the main review provisions (Part 6 of the 1992 Act and Part 5 of the 2001 Act) sandwiched between those parts of the scheme relating to cover, claims and entitlements (Parts 2-5 of the 1992 Act and Parts 2-4 of the 2001 Act) and those pertaining to the calculation of premium/levies (Part 7 of the 1992 Act compared with Part 6 of the 2001 Act). In both the 1992 and 2001 Acts employers receive notice as to whether a claim made was to be treated as a work injury (1992) or work related personal injury (2001 Act), with an employer under both Acts having the opportunity to challenge such a determination within three months should it choose to do so. 
[37]
Despite accepting that the relevant parts of the legislative regime are almost identical I am none the less not prepared to follow the 1992 Act authorities referred to above. First, with regard to the decision of Judge Ongley in Lane Walker Rudkin Limited - the authority relied upon by Judge Barber in Alstom and Judge Beattie in Ministry of Education - His Honour made it quite clear that on the facts of that case it was never argued that there was a decision under s 65 (the equivalent of s 64(2) against which the appellant had had a right of review under the review provisions then applying. 
[38]
This is important. As noted at [21] above, in the present appeal AHH was properly notified pursuant to s 64(2) in respect of all but one of the 24 claims which it now seeks to exclude as part of the challenge to the March decision, and chose not to challenge any of those decisions that those claims were work-related within the three month period specified10
| X |Footnote: 10
With regard to the qualifying claim which was not formally notified to AHH, it clearly cannot be included until it has been notified under s 64(2) and when it is it will be able to be challenged by AHH under s 134(2) and not pursuant to s 236(1). The important point is that as noted elsewhere, whether or not a claim is a qualifying claim is not determined pursuant to Part 6 of the Act but as noted previously, pursuant to Part 2. The objection to including that particular claim on the list of qualifying claims is because it has yet to be determined that it is a work related personal injury. 
. I take the opposite view to Judge Ongley that an employer is not to be bound by that decision for all purposes: if any other decision on a claim is made, notified as required, and then not reviewed, it is binding on a claimant, and I see no reason why it should not also be so binding for an employer with regard to a work-related personal injury given the employer is given a specific process to challenge the status of particular claims at the time a decision is made should it wish to do so. It is likewise difficult to reconcile the limitation on reviewing decisions on work related personal injuries contained in s 132(2) with s 132(5) which reflects the provisions of s 236(4) of the 2001 Act providing that reviews challenging levies are to be determined under Part 5. Specifically it is difficult to see why challenges to work-related status are restricted to three months under s 132(2) if s 132(5) is to be interpreted as opening up the same issue again if a levy is challenged. It should be noted that this approach does not deprive an employer of a right to a fair hearing as alleged by Mr Sharp in submissions, but it does require appropriate action to be taken by an employer at the time the relevant decision as to work-related status is being made. 

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