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Accident Compensation Cases

Guthrie v Accident Compensation Corporation (DC, 18/12/15)

Judgment Text

Judge L G Powell
In February 2012 the appellant, Rebecca Guthrie, sought cover for carpal tunnel syndrome as a work related gradual process injury resulting from her job as a commercial cleaner. The claim was investigated by WellNZ, but following an assessment undertaken by Dr Mark Floyd, specialist occupational physician, on 11 April 2012 WellNZ issued a decision declining cover (“the cover decision”). 
There is no dispute that Mrs Guthrie did not file an application for review of the cover decision within the three month time limit provided in s 135(2)(f) of the Accident Compensation Act 2001. Instead Mrs Guthrie's application for review was only filed on 31 May 2013, some 13 months after the cover decision was issued. Pursuant to s 135(3) of the Act Mrs Guthrie argued that there had been extenuating circumstances that affected her ability to file her review but her reasons, that she had by then had an operation to treat her carpal tunnel syndrome in 2013 and had talked to an advocate, were not accepted by WellNZ who issued a decision on 20 June 2013 declining to accept the late review. 
WellNZ's decision on the late review application was upheld at review and Mrs Guthrie has appealed. The sole issue before me is whether extenuating circumstances exist for the late filing of the review. 
Extenuating Circumstances 
The principles surrounding the application of s 135(3) of the Act were usefully summarised by His Honour Judge Ongley in Smith v Accident Compensation Corporation1
| X |Footnote: 1
[2010] NZACC 66 at [10] 
where he noted: 
“The legislative language does not suggest a high threshold of circumstances causing difficulty in filing an application in due time. ‘Extenuating’ does not suggest a need to show unusual or extraordinary circumstances. It is more akin to mitigating or explaining. The extenuating circumstance must be something of reasonable substance. Oversight or forgetfulness, for example, could not suffice on its own: Gordon v ACC (165/05). Secondly, the claimant needs to provide the Corporation or the Court with enough information to decide whether there are extenuating circumstances in a given case. The information needs to match periods of delay with reasons for delay. Vague assertions are unlikely to be enough. The Court needs to know what the circumstances are with reasonable. precision. In the present case the appellant's reasons were vague and unsubstantiated at the time of the hearing, but have been expanded in later material. ”
The Case for Mrs Guthrie 
Ms Brown for Mrs Guthrie submitted with reference to an affidavit sworn by Mrs Guthrie that the following extenuating circumstances existed which were sufficient to allow for the late filing of the review: 
Mrs Guthrie received notification of the cover decision at a time when she was preoccupied and stressed from having been recently diagnosed with endometriosis, having had an operation to remove endometriosis on 19 March 2012 and having subsequently attended her brother's wedding; 
That having received notification of the cover decision she was not really able to understand what her review rights were in an environment where both WellNZ and her employer were adamant that her claim for cover had no merit; 
That for some time after her endometriosis surgery Mrs Guthrie was having to use Tramadol and other significant medications; and 
Even at review she had not felt comfortable discussing her personal issues, particularly given her employer was present. 
In Ms Brown's submission: 
“It is submitted, given the extent of Mrs Guthrie's difficulties during the review period and the fact that the Courts have accepted that a high threshold of circumstances is not required in cases of this nature; that Mrs Guthrie should not be deprived of the opportunity to have the substantive matter heard. ”
Discussion and Analysis 
Having considered the evidence carefully I do not consider that Mrs Guthrie has established that extenuating circumstances affected her ability to meet the time limit for filing her application for review. 
In particular there is no evidence that Mrs Guthrie had any more difficulty than any other claimant in understanding that an application for review needed to be filed within three months. In any event Mrs Guthrie did not just receive the standard information about her right to apply for a review contained in the cover decision letter and its attached information sheet which provided respectively: 
“Cover Decision 
If you have any queries about this decision, please contact me. If you are still not satisfied, you can ask for an independent review of this decision. You need to apply for a review within three months of the decision date. This deadline may be extended when situations outside your control have prevented you from applying. The review process is outlined in the enclosed Resolving Issues fact sheet. 
Information Sheet 
When do I apply for a review? 
You must apply within three months of the date of the letter advising you of the decision you wish to review. This deadline may be extended when situations outside your control have prevented you from applying. 
When do I apply for a review? 
You need to apply in writing. You can either write a letter outlining your reasons for wishing to review a decision, or contact Wellnz for a Review Application form and send it to Wellnz at the address below. If you want to know more about applying for a review, and what happens at the review hearing, ask for the Review Hearing Fact Sheet from Wellnz or your nearest ACC office. ”
Instead, the same day the cover decision was released and as Mrs Guthrie acknowledged at review, her case manager at WellNZ, Fergus Rolston rang Mrs Guthrie with regard to the pending decision with his notes of the conversation being recorded as follows: 
“CLAIMANT CONTACT — Call to Rebecca — Discussed claim and current situation. She has returned to normal work following 3 weeks off for other health reasons. She is managing well with her full work tasks. I advised that as she not deemed at greater risk as developing this condition from her work than someone that doesn't, we were unable to accept her claim form for CTS. 
Discussed review rights and would follow up in writing with the decision. ”
Even more importantly while it appears clear that Mrs Guthrie was preoccupied at the beginning of the review period as a result of the matters set out at [5][a]-[c] above, there is absolutely no evidence that any similar considerations existed or continued after the end of April 2012. In particular I note that at review the reviewer, Ms R Anderson, specifically asked Mrs Guthrie what else was going on in the three month period between 11 April 2012 to 11 July 2012 and received no further detail than the matters set out in [5][a]-[c]. While Mrs Guthrie may have had difficulties speaking about her problems at review for the reasons set out at [5][d] no further explanation has been provided since the review decision. 
On the contrary Mrs Guthrie's general practitioner notes show that she received no treatment for her endometriosis related issues in the three months from the issue of the cover decision. Instead the general practitioner notes show that after the general practitioner received notification of the cover decision on 12 April and left a message on Mrs Guthrie's cellphone the next day, the only other attendances noted in the period took place on 24 May 2012 and 25 June 2012 respectively and these related to Mrs Guthrie's carpal tunnel syndrome. The entry for 24 May 2012 recorded in particular: 
“Problem; 1. Discomfort in R hand. 
Wanting assistance to get relief/cure. 
Aching in IP joints, mostly middle & ring, perhaps most noticeable at rest, 
Associated aching in R wristhand with radiation up the R forearm. Aching may occur with heavy lifting. 
Some pins & needles in R thumb, index & middle finger. 
R hand dominant. 
Trying to use L hand more. 
EXAM; R hand/fingers, no muscle wasting or fasiculation. 
Phelan's test, mildly positive. 
IMP ?Carpal Tunnel syndrome. 
Plan; 1. Refere for Nerve conduction studies. 
TCB 3/52 post nerve conduction studies. ”
This is significant as it shows that notwithstanding her concerns with regard to the diagnosis and treatment of her endometriosis Mrs Guthrie was nonetheless able to focus on the treatment of her carpal tunnel syndrome at a point when both Mrs Guthrie and her general practitioner were aware of the result of the application for cover. 
Taking these matters together there is no conceivable basis to conclude that extenuating circumstances affected Mrs Guthrie's ability to meet the time limits for filing her application for review. As a result WellNZ's decision of 20 June 2013 is clearly correct and the appeal must be dismissed. 
The appeal is dismissed. There is no issue as to costs. 

[2010] NZACC 66 at [10] 

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