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Accident Compensation Cases

Hutchings v Accident Compensation Corporation (DC, 27/02/15)

Judgment Text

RESERVED JUDGMENT OF JUDGE L G POWELL 
Judge L G Powell
[1]
On 2 August 2006 the appellant, Mark Hutchings, had his weekly compensation terminated for failure to complete and return at statutory declaration provided to him five days before with a request that he complete it within five days. 
[2]
The completion of the statutory declaration was a requirement pursuant to s 72(2) of the Accident Compensation Act 2001 which obliges a claimant like Mr Hutchings to provide a statement in writing regarding his or her entitlements as specified and when requested by the Corporation. When the completed statutory declaration was not received within five days the Corporation acted pursuant to s 117(3) of the Act which provides: 
“117
Corporation may suspend, cancel, or decline entitlements 
 
(3)
The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to— 
(a)
comply with any requirement of this Act relating to the claimant's claim; or 
(b)
undergo medical or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or 
(c)
agree to, or comply with, an individual rehabilitation plan. 
… ”
[3]
Mr Hutchings did not immediately challenge the decision. In fact it was not until August 2009 when Mr Hutchings first queried the decision and he applied out of time for a review shortly thereafter. In the meantime he had not at any point completed and returned the statutory declaration, and indeed this still had not been tendered to the Corporation by the time this appeal was heard. 
[4]
Although the Corporation declined to accept the late filed review application, at review (“the first review”) the reviewer, Raewyn Anderson, accepted that extenuating circumstances existed for not filing the review within three months of the Corporation's decision. In particular the reviewer accepted that in that period Mr Hutchings was overwhelmed by his health issues, as well as personal and financial circumstances. 
[5]
Mr Hutchings' challenge to the decision then proceeded to a review on the substantive issues (“the second review”), however the reviewer, Ken Howell, found that the failure to complete the statutory declaration was in fact unreasonable, and Mr Hutchings has now appealed. 
[6]
It was accepted by Mr Eckersley on behalf of Mr Hutchings that the request for Mr Hutchings to complete the statutory declaration was reasonable. The sole question to be determined in this appeal is therefore whether Mr Hutchings acknowledged failure to complete the statutory declaration was in fact an unreasonable failure. 
The Case for Mr Hutchings 
[7]
Ms Eckersley submitted that Mr Hutchings did not unreasonably fail to comply with the Corporation's request and, as a result, the Corporation should not have declined to pay weekly compensation. 
[8]
In particular Ms Eckersley submitted that having regard to Mr Hutchings' personal circumstances which were acknowledged and accepted in the first review “including his health, his marriage, his business and his family life were such a mess that he failed to comprehend what was being asked of him by [the Corporation]”
[9]
In Ms Eckersley's submission: 
“4.8
… Mr Hutchings was in a confused and desperate state in July 2006 and in all the circumstances his failure to comply was not unreasonable. In fact quite the reverse, a reasonable person would be very likely to confuse issues and fail to comply. 
4.9
It is submitted that the record of the meeting of 27 July 2006 actually shows that Mr Hutchings was trying to be co-operative and answer the questions put to him. In fact he was answering some of the questions relevant to the Declaration of Responsibilities. ”
[10]
Finally it was Ms Eckersley's submission that the findings in the first review “are highly relevant to the determination of whether Mr Hutchings' failure to fill out the declaration was unreasonable”, with the reviewer finding that extenuating circumstances existed from 2 August 2006, being the date that the weekly compensation was stopped. 
Relevant Context 
[11]
In the present case the issue of whether Mr Hutchings' failure was unreasonable can only be determined by reference to the wider circumstances that existed at the time the request to complete the statutory declaration was made. 
[12]
The request must be seen in the context of an earlier request for information made in an environment where the Corporation was suspicious that Mr Hutchings was working while on weekly compensation, with Mr Hutchings being aware of those suspicions. In early July 2006 the Corporation had requested that Mr Hutchings complete an ACC174 form and advised him he was to return that form within five days. Although there was communication between the parties within the five day period and a meeting was arranged to take place on 11 July 2006, Mr Hutchings ended up neither attending the meeting nor providing the completed form. As a result, on 12 July 2006 the Corporation wrote a further letter to Mr Hutchings giving him a further five day period to complete the form and advising that a failure to complete would result in the immediate suspension of his entitlements. Seven days later on 19 July 2006 Mr Hutchings' case manager noted that Mr Hutchings still had not completed and returned the form and weekly compensation was then suspended. On 24 July Mr Hutchings rang his case manager, and confirmed that he had received two of the three letters from the Corporation but that he had been “busy getting his business off the ground”
[13]
A meeting was arranged for 27 July 2006 but the day before it took place the completed form was dropped off at the Corporation's office and, as a result, Mr Hutchings weekly compensation was resumed. The meeting on 27 July 2006 nonetheless took place. At the meeting Mr Hutchings was handed the statutory declaration form to be completed, together with a covering letter requesting it to be returned within five days with the letter noting in particular: 
“Failure to assist us in our enquiries or provide to ACC the information we seek, may alter any future claims or entitlements you have with the Corporation. ”
[14]
There is no record that Mr Hutchings raised any objection to completing the statutory declaration within the time specified. In the event, as noted, the completed statutory declaration was not provided nor was there in fact any further substantive contact prior to 2009 between Mr Hutchings and the Corporation save for a telephone call between Mr Hutchings and his case manager on 4 September 2006, in which Mr Hutchings requested that the details of his weekly compensation payments be sent to Work and Income New Zealand (“WINZ”). In the meantime Mr Hutchings' weekly compensation was stopped from 2 August 2006. 
[15]
With regard to Mr Hutchings's subsequent difficulties these were summarised in the first review decision as follows: 
Between July 2006 and Christmas 2006 his life was a complete mess. 
He did not receive the decision letter of 5 August 2006. He was living in his van at the bottom of 50 Wyndham Road, Pinehaven. His older brother was looking after the mail. 
His father was sick with cancer for a long time. He died suddenly of a heart attack and fell downstairs on 19 September 2006. He picked him up at the bottom of the stairs and he died in his arms. 
His wife left him in early August 2006. She took the children. 
He did not do anything when his weekly compensation was stopped because he was not receiving any of the money anyway. His wife was using the money. 
He was suffering stress from his bad financial situation. He was a self employed builder who couldn't work. His tools and vehicle were being sold off. 
He had no will or desire to open any letters or understand what was happening. He believes he was depressed. He did not see a general practitioner about any depression because he could not afford to, 
He couldn't think straight because of the pain he was in. 
By Christmas 2006 he moved in with his mother. With her help he went to see a doctor at Upper Hutt Medical Centre in January or February 2007. They wrote him medical certificates so that he could get income from WINZ. 
Finally, with the help of Dr Tatiana he went through his paper work and realised he needed to review ACC's decision suspending his weekly compensation. 
Discussion and Analysis 
[16]
It is clear from the background set out above that the Corporation had some difficulty getting a completed ACC174 form out of Mr Hutchings and it was eventually only provided once the threat to cease weekly compensation had been exercised. This background explains what would otherwise have been a tight timeframe for the completion of the statutory declaration, and why the Corporation moved quickly to stop ongoing weekly compensation when the statutory declaration was not provided. 
[17]
As a result although the consequences of the failure to provide the statutory declaration within the requested time were not spelled out as clearly as they had been in relation to the ACC174 form, there can be no doubt that at that time Mr Hutchings would have understood the importance of completing the statutory declaration as well as the consequences if the statutory declaration was not completed as he had been requested. In addition Mr Hutchings raised no objection or difficulty with completing the form and indeed I note that no substantive drafting was required for the statutory declaration to be completed, the document requiring only the insertion of Mr Hutchings' personal details and then to be executed in front of an appropriate witness. Taking these matters together I consider that Mr Hutchings' failure to provide the form within the timeframe requested was therefore unreasonable, and the Corporation was therefore entitled to cease weekly compensation on 2 August 2006. 
[18]
I reach this conclusion accepting Mr Hutchings had a lot on in or after the relevant period but contrary to the conclusions reached by the reviewer in the first review there are in fact significant contradictions in the evidence between Mr Hutchings' statements to the Corporation and these are apparent from Mr Hutchings evidence at the second review. In particular it appears that the focus in the July period was not so much Mr Hutchings life being being not in control but rather that he was starting a new business and working in Tauranga for a period. It is also clear from the summary contained in the first review decision that many of the personal issues faced by Mr Hutchings were spread out over the months following the decision. The suggestion that he did not know what was happening and could not cope as being the basis for his ongoing non compliance is also inconsistent with his approach to his case manager on 4 September 2006 requiring that the details of his weekly compensation be provided to WINZ. This (as it turned out) final communication in that period showed that Mr Hutchings was able to communicate, and appears to have accepted that the weekly compensation was at an end. Furthermore, Mr Hutchings did not apparently raise any issue with the need for further time to complete the statutory declaration, nor indeed did he seek any other assistance from the Corporation, and from then on it would appear he was in receipt of a benefit from WINZ. It therefore appears from the limited evidence available, that Mr Hutchings accepted the decision of the Corporation and taking the circumstances together, I can see no basis for concluding that his ongoing failure to provide the completed statutory declaration was other than unreasonable, a position that has not changed with his continued failure to provide the requested document since that time up to and including the hearing of the present appeal. 
[19]
Furthermore I accept Mr Barnett's submission on behalf of the Corporation that the purpose of s 117(3) of the Act is to enable the effective management of the Accident Compensation scheme. As a result a claimant like Mr Hutchings who has rights to weekly compensation has correlative duties which are required to be taken seriously as a condition of receiving weekly compensation, and which I am satisfied that Mr Hutchings has not discharged in the present case. 
Decision 
[20]
The appeal is dismissed. There is no issue as to costs. 

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