Accident Compensation Corporation v Peck [2004] NZCA 324; (2005) 7 NZELC 97,712 (17 December 2004)

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Accident Compensation Corporation v Peck [2004] NZCA 324 (17 December 2004); (2005) 7 NZELC 97,712

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA10/04

BETWEEN ACCIDENT COMPENSATION CORPORATION
Appellant

AND DERELLE PECK
Respondent

Hearing: 22 June 2004

Court: McGrath, William Young and Chambers JJ

Counsel: A D Barnett and L M Rice for Appellant
J M Miller for Respondent

Judgment: 17 December 2004

JUDGMENT OF THE COURT

The appeal is allowed and the decision of Judge Middleton reinstated. Costs are reserved with leave to counsel to submit memoranda.

REASONS

McGrath and Chambers JJ [1]

William Young J (dissenting) [40]

McGRATH AND CHAMBERS JJ

(Given by McGrath J)

Introduction

[1] The issue in this appeal is whether the Accident Compensation Corporation is entitled to refuse to pay weekly compensation to an insured person for a period during which she had refused to undergo a medical assessment as required by the Corporation. It resumed making payments to her after she agreed to undergo the assessment but declined to make any payments covering the period of her refusal.
[2] The appeal is to be decided under the Accident Insurance Act 1998. That Act initially provided for the competitive provision of entitlements by an “insurer” but the respondent Corporation became the sole provider in 2001. In this judgment we shall refer to the Corporation rather than to an insurer.

Background

[3] In March 1998, while she was working as a nurse at Palmerston North Hospital, the respondent, Ms Peck, suffered a back injury while lifting a patient. Her claim for cover under the Accident Compensation Act 1982 was accepted and her rights to weekly compensation continued under the terms of the subsequent legislation. In January 2000 the Corporation required her to undergo a medical assessment. She refused to do so. The Corporation then declined to pay any further compensation to her from 19 January 2000 on account of her refusal. That decision was challenged by the respondent on review and then on appeal to the District Court, which upheld the Corporation’s decision on 22 May 2001. On 28 May the respondent agreed to undergo the required assessment. The Corporation thereafter resumed making weekly compensation payments to her but has refused to make any payment of compensation for the period between 19 January 2000 and 28 May 2001 during which she had declined to undergo the assessment. The Corporation’s position is that it has authority to take this position under s 116(3) of the Accident Insurance Act 1998.
[4] The respondent sought a review of the Corporation’s decision not to make payments covering the period of her refusal to submit to assessment. The reviewer confirmed the Corporation’s decision not to pay the appellant weekly compensation for the period. The appellant appealed against the decision to the District Court. Judge Middleton upheld the review decision, saying that the Corporation had a power of suspension under s 116(3) of the Act the purpose of which was to enable the Corporation “to have some measure of control over its obligations to carry out the provisions of the Act.” Judge Middleton accepted that there was nothing in s 116 which prohibited backdating but said that it was necessary to consider the overall facts of the case which included the respondent’s knowledge that there might be consequences flowing from her failure to comply with the Corporation’s request. He said her behaviour had been unreasonable during the period that she had not complied with the respondent’s direction. On consideration of the overall facts of the case he concluded that it was appropriate that the respondent should not “receive her weekly payments while she had unreasonably flouted the respondent’s direction”.

High Court judgment

[5] The respondent appealed to the High Court. In his judgment allowing the appeal (HC WN CIV-2003-485-960 31 October 2003) Doogue J said that, as the purpose of the Act was to create statutory entitlements, clear words were required to take away those rights. The language of s 116 was not clear in this respect. The word “decline” in s 116(3) was ambiguous as to whether entitlements covering the period of default had to be paid after the default was remedied. The Judge was not prepared to give weight to the contrast with the word “suspend” in s 116(1). The words “decline to provide” fitted a context where an entitlement undoubtedly existed, whereas “suspend” was naturally used in circumstances where its existence was questioned. The Judge considered the legislative history of s 116 in detail, but concluded that little could be drawn from it. He noted that previous provisions had contained more clearly expressed exceptions to the requirement to pay entitlements for any period of unreasonable refusal. Doogue J noted the potential for abuse of the statutory scheme on his approach, but considered that that result reflected the language and the importance of the entitlements created by the Act.
[6] The Corporation was granted leave to appeal to this Court by the High Court.

Submissions

[7] Mr Barnett, for the appellant Corporation, contended that the High Court Judge was wrong. He accepted that the words “decline to provide any statutory entitlement” are capable of bearing either of the opposing meanings adopted in the High Court and the District Court. Mr Barnett said that in considering which meaning is to be preferred it is important to bear in mind that the statute not only confers entitlements for an insured person but also imposes duties on that person including duties to provide information to the Corporation.
[8] Turning to the text of s 116, Mr Barnett acknowledged that the heading which states: “Insurer may suspend or decline statutory entitlements” indicated that there are two distinct concepts which are covered by s 116(1) and s 116(3). The word “suspend” indicated that if, following inquiry, it were established that the entitlement remained in existence payment of the entitlement had to be made to cover the period of suspension. On the other hand different language was used in s 116(3), and the word “decline” did not suggest a temporary deferral in making payments as did the word “suspend”. The words “for as long as” in s 116(3) were said by Mr Barnett to be concerned solely with the period during which payment can be declined rather than what happened once the default is remedied. Mr Barnett argued that compliance would bring a default under s116(3) to an end, but did not eradicate it or the consequences of it. He argued that the purpose of the legislation was to provide for different consequences under s 116(3) than under s 116(1).
[9] Mr Barnett also addressed the purpose of the section which he said was to ensure effective management of the statutory compensation scheme. He suggested that the interpretation preferred by the High Court has consequences that are inconsistent with efficient management. Where persons with statutory entitlements refuse to submit to medical examination, in the knowledge that they were no longer suffering from injury, they could extend the period of their statutory entitlements knowing that on compliance with the Corporation’s requirements compensation would be backdated, even if the examination ultimately determined that their entitlement had ceased. Mr Barnett said that the Corporation in many cases would have insufficient information to make a decision to suspend an entitlement under s 116(1) prior to compliance with its requirements.
[10] Overall Mr Barnett’s submission was that the interpretation adopted by the High Court left little incentive for an insured person to comply with requirements of the Corporation because in many cases default in doing so would be to their advantage.
[11] Counsel for the respondent, Mr Miller, supported the analysis of the High Court Judge. He said that there were indications elsewhere in the Act that where legislation took away entitlements it used clear wording, citing ss 117 to 123. He also argued that the reality of the Corporation’s procedures was that low level administrators would be given the power to deprive insured persons of entitlements which he said was contrary to the social compact on which the Act was structured. While there is provision for review, Mr Miller’s submission was that the costs of that process were such that it is not an economic option for most claimants. In the end the Corporation’s clerks would in most cases be the only decision-makers were the appeal to be allowed.
[12] Mr Miller also took issue with the submission that there is a clear difference between the terms “suspend” and “decline” in s 116. Even if “decline” was a stronger term it was not sufficiently clear that Parliament had intended in s 116 that a person would permanently be deprived of an entitlement when the power to decline was exercised. Logically, once a default had been remedied, the Corporation should have no authority to decline to make payments which were the subject of an entitlement. Mr Miller also argued that the nature of accident compensation was such that a strong incentive to comply with the requirements of the Corporation remained even if cessation of payments were only temporary during a period of default. For most insured persons that would be such a hardship that they would be forced immediately to comply with what the Corporation had required. He argued that unless claimants were able to show continuing incapacity through the suspension period their entitlements would not be backdated. If more is required to deal with problems in the administration of the Act statutory amendment is the appropriate course.
[13] Mr Miller finally relied on the legislative history. In agreement with the High Court Judge he argued that the power permanently to decline to make payments was not carried through into the 1992 Act and that in the 1998 Act the change from a mandatory obligation to a permissive requirement would have in any event altered the position.

Statutory scheme

[14] The policy underlying successive accident compensation statutes in New Zealand, including the 1998 Act, has been to provide statutory entitlements to compensation for personal injury, without requiring proof of fault (s7(1)). Those who suffer personal injuries covered by the scheme may be eligible for a range of statutory entitlements detailed in the Act which they “must receive” from the Corporation (s8(1)). The Corporation is thus subject to a statutory duty to provide statutory entitlements under the Act.
[15] Part 5 deals with statutory entitlements. Eligibility for entitlements is governed by s 79. The entitlement of an insured person to weekly compensation is dependent on his or her incapacity for work, which is to be determined by the Corporation. It may re-assess the person’s incapacity while the person is receiving weekly compensation. If the Corporation determines the person is not incapacitated he or she is not, or is no longer, entitled to compensation (s 82). The procedures for making these determinations are stipulated in Part 5 (s 83). These include requirements for assessment by medical practitioners and other appropriately qualified persons (s 84). A carefully prescribed process is laid down in ss 85 to 92 which may lead to loss of entitlement to weekly compensation.
[16] Section 115, under a heading “Responsibilities of Insured”, imposes responsibilities on persons who receive a statutory entitlement which arise when they are “reasonably required” to do certain things by the Corporation. These duties include providing medical certificates and other information that the Corporation requires and authorising the Corporation to obtain medical and other records relevant to a claim. The Corporation can also require a person receiving an entitlement to undergo a medical assessment by a specified health professional, at the Corporation’s expense, and to provide a written statement about matters relevant to an entitlement or continuing entitlement.
[17] Section 116, the central provision in this appeal, which is under the heading “Powers of Insurer”, follows. Then a number of provisions appear in ss 117 to 123 under the heading “Disentitlements”. These provisions typically provide that the Corporation “is not liable to provide any statutory entitlements” in particular circumstances, such as refusal to undergo a prescribed hearing test (s 117) or during a period in which the person having the entitlement is imprisoned (s 122). Other general provisions in relation to entitlements follow. These do not provide assistance in deciding the issues raised by this appeal.
[18] The statutory compensation scheme is thus based on a set of prescribed entitlements which the Corporation has a duty to provide to those who hold them. The entitlements are based on the eligibility of insured persons under the Act. Entitlement to weekly compensation arises from incapacity for work, which state must be ongoing if the entitlement is to continue. Decision-making in this area is part of the Commission’s functions under the Act. In particular it determines whether circumstances giving rise to incapacity have changed over time. If they have, entitlements to compensation may cease to exist.
[19] In particular circumstances, the Corporation is not liable to provide a person an entitlement under the Act. In effect these are situations of “disentitlement”, where the basic duty imposed on the Corporation to provide entitlements is negated by the Act.
[20] As well, there are duties on persons receiving statutory entitlements to provide information reasonably required by the Corporation relating to an entitlement. These duties facilitate the Commission’s function of administering the statutory scheme, by enabling it to be informed on a continuing basis, as the Commission requires, of the eligibility of a person to receive an entitlement.

Discussion

[21] We start with the text of s 116 of the Accident Insurance Act 1998 which provides:

116. Insurer may suspend or decline statutory entitlements

(1) An insurer may suspend a statutory entitlement if it is not satisfied, on the basis of the information in its possession, that an insured is entitled to continue to receive the statutory entitlement.

(2) The insurer must give the insured written notice of the proposed suspension within a reasonable period before the proposed starting date.

(3) An insurer may decline to provide any statutory entitlement for as long as an insured unreasonably refuses or unreasonably fails to-

(a) Company with any requirement of this Act relating to the insured’s claim; or

(b) Undergo medical or surgical treatment, to be provided by the insurer, for his or her personal injury; or

(c) Agree to, or comply with, an individual rehabilitation plan.

[22] On its ordinary meaning “to decline” in s 116(3) simply means to refuse, with no connotation of temporariness, but a temporal element is introduced to the subsection by the words “for as long as”. Their effect is to confine the cessation of the Corporation’s duty to provide insured with their entitlements to the period of unreasonable refusal, or failure to act as required under the Act.
[23] It is the temporal element in the text that creates two possible meanings concerning whether the cessation of the Corporation’s duty to provide the entitlement is final during the period of default or only interim, so that once the default is remedied the duty to provide the entitlement covers the period of cessation as well as that following compliance. In choosing between these meanings, we have regard to the context and to the statutory purpose for which the power is conferred.
[24] The immediate context is found in s 116 itself, which, as its heading indicates, empowers the Corporation to “suspend or decline statutory entitlements”. Section 116(1) confers a power to suspend in situations where the Corporation is uncertain over whether there is a continuing entitlement. The ordinary meaning of “suspend” is to put a stop to something for a period of time or to interrupt it. The use of the term “suspend” therefore makes plain that the Corporation’s duty is deferred and its cessation of interim effect. If the uncertainty over entitlement is resolved on the basis that the entitlement continues to exist, then the duty is fully restored when the uncertainty is resolved, and must be complied with for the whole of the period of its deferral.
[25] The contrast between “suspend” in s 116(1) and “decline” in s 116(3), both in the heading to s 116 and in the body of the section, strongly indicate that the latter term was intended to have a more permanent effect. Though Doogue J reasoned that undue weight should not be put on a mere terminological difference, the structure of the section also supports the view that different concepts were intended in each case. Subsections (1) and (3) have different roles. The former permits suspension where the Corporation suspects an entitlement has ceased to exist. If it is later ascertained that the suspicion is unfounded, the interrupted payments should of course be made. The latter provides a mechanism for dealing with a failure to comply with requirements for which different consequences might be anticipated.
[26] The “Disentitlement” provisions in ss 117 to 123 offer little assistance in interpreting s 116. They are directed to certain events which have the consequence of removal of entitlements. The situation in s 116(3) is different. An entitlement is in existence but a person has refused to comply with the Corporation’s requirements directed to ascertaining if it should continue. A discretionary power not to pay the entitlement is created. In this different context the disentitlement provisions do not assist in ascertaining the scope of that power.
[27] Nor do we do find the statutory history of great assistance. There were equivalent provisions to s 116 in the earlier accident compensation statutes. In the Accident Compensation Act 1972, s 132 imposed a duty on a claimant for compensation to submit for examination by a nominated medical practitioner. If the claimant refused or neglected to do so, without sufficient justification, the person’s rights under the Act were “suspended”, unless the then Commission otherwise decided, until the examination took place. It was specifically provided that no compensation was payable during the period of suspension (s 132(2) and (3)).
[28] The Act was amended in 1975, in a manner which was substantially carried through to the 1982 Act. This provided for a duty on a claimant to submit to an examination by a nominated medical practitioner if and so often as required by the Corporation (s 87 Accident Corporation Act 1982). The rights of a person who without justification refused, neglected to submit for or obstructed or delayed such examination were suspended, except so far as the Corporation decided otherwise, until it took place. The specific provision in the 1972 legislation that no compensation was to be payable in respect of the period of suspension was not included in the 1982 Act.
[29] The 1992 Act approached the question differently, dealing separately with situations where the Corporation was not satisfied on the basis of information in its possession that a person continued to be entitled to benefits and those where a person unreasonably refused or failed to comply with requirements made under the Act. In each case under the 1992 Act it was mandatory for the Corporation to act, in the former instance to suspend payment of compensation or other benefits, in the latter to “decline to make any payments under the Act.” The main difference in the 1998 Act was to express as a power, rather than a duty, the discretion to suspend or to decline to provide statutory entitlements.
[30] It is true that in the initial legislation the permanent nature of the refusal to pay entitlements was expressly recorded. There is, however, no indication that the absence of such a provision in later legislation was significant. Rather, the way the present section is structured suggests it was thought that the same result could be achieved in s 116, through more economical language conferring a discretionary power.
[31] For Doogue J, the consideration of greatest importance is that s 116(3) was a provision interfering with rights established by the Act, in particular by s 8. But the provisions stipulating the rights of insured are part of a statutory scheme which includes correlative duties on persons in receipt of statutory entitlements to co-operate in procedures that will keep the Corporation continually informed as to their eligibility for entitlements.
[32] The purpose of s 116(3) in this context is to provide a mechanism that the Corporation can use in appropriate cases to ensure compliance by persons who have entitlements with their duties to keep the Corporation informed about their condition when required. This enables the Corporation to maintain the integrity of the statutory scheme by ensuring only those eligible receive benefits under it. The terms of s 116 reflect the legislature’s perception of the scope of powers needed by the statutory body with principal responsibility for the administration of the Act.
[33] Thus the power to decline to provide an entitlement, which is conditional on a person entitled acting unreasonably in the manner outlined in s 116(3), is an enforcement power given in the public interest. It is available where there has been a breach of duty. It is not given for punitive purposes but in order to ensure that the duties of persons entitled are observed, so that the scheme operates effectively.
[34] The effective management of the scheme would be frustrated if the Corporation were not empowered to refuse to pay entitlements permanently during a period of default. That could create the anomalies pointed to by Mr Barnett, where persons prolonged their entitlements by refusing to comply with requirements for periods of time. That result would in our view be inconsistent with the purpose of the legislation.
[35] The clear purpose of the power and its centrality to the effective working of the statutory scheme also limit the assistance that can be derived from the canon of construction by which judges control the exercise of expropriatory powers: cf J F Burrows Statute Law in New Zealand (3ed 2003) at 143-145.
[36] This purposive element supports the meaning of s 116(3) which treats the effect of exercise of the power to decline to provide the entitlement as final, rather than interim, during the period of default. Only that meaning carries a strong incentive for those with entitlements to facilitate the Corporation’s inquiry into their continuing eligibility. Their entitlements are clearly conditional on their acting in accordance with reasonable requirements. To say that suspension alone would have this effect would water down the role of the powers concerned under the statutory scheme and create anomalous windfalls for claimants in some circumstances.

Outcome of appeal

[37] For these reasons we are satisfied that s 116(3) gave the Corporation the discretionary power permanently to decline the respondent’s entitlements for the period of her unreasonable refusal to submit to a medical examination.
[38] The appeal is accordingly allowed and the decision of Judge Middleton reinstated.
[39] Costs are reserved, with leave for counsel to submit memoranda if desired.

WILLIAM YOUNG J

[40] It is common ground that s 116(3) of the Act can be interpreted as conferring a power either:
(a) To withhold, but only during the period that an insured is in default, what would otherwise be the entitlements of the insured; or
(b) To cancel the statutory entitlements of the insured in relation to that period.

On the first approach, the power is to suspend provision of the entitlements which, once the default has been remedied, must be reinstated retrospectively. On the latter approach, the power is to cancel the entitlements referable to the period of default.

[41] I believe that s 116(3) is better interpreted as conferring a power to suspend entitlements. In practice, such a power would be sufficient to bring any default to an end reasonably quickly, at least in any ordinary situation. I see this interpretation as sitting easily with the words of the section, “decline to provide ... for as long as ...”. If the legislature had intended to confer a power of cancellation of entitlements, I think that it would have chosen less equivocal language, perhaps along the following lines:

An insurer may cancel any statutory entitlements referable to any period during which an insured unreasonably refuses or unreasonably fails to ... .

[42] In a case in which the Corporation invoked s 116(1), the underlying entitlement would either revive if the uncertainty over the insured’s entitlements was resolved in favour of the insured, or be cancelled, with retrospective effect, from the date of the suspension if the uncertainty was resolved the other way. That type of suspension is different from the suspension which I consider to be provided for by s 116(3). So I am of the view that the change of language between s 116(1) and (3) does not control the issue we must determine.
[43] To my way of thinking, the strongest argument against interpreting s 116(3) as conferring a power to suspend is that referred to by McGrath J in [9] (by way of paraphrase of the arguments of Mr Barnett) and again in [34]. The situation postulated is of an insured who declines treatment which, if undertaken, would restore fitness for work and thus bring an end to any entitlements. The suggestion is that the suspension interpretation would mean that once the treatment was undertaken (and the default thus remedied), the insured would be entitled to back-dated but unmerited compensation going back to the beginning of the period of default.
[44] I am by no means certain that this concern is well-placed. In such a situation there would be every reason to construe the Act so as to hold that the insured could only recover retrospectively on the basis that at the relevant time he or she had a genuine incapacity for work. We were not taken in any detail through the various sections of the 1998 Act which would have been applicable in such a case and I am yet to be convinced that they would not be capable of a sensible interpretation which would prevent such an unmeritorious result.
[45] On the other hand, it is perfectly clear that Ms Peck was, throughout the relevant period, entitled (using that word in a loose sense) to the compensation in question. The Corporation, by withholding payment, in the end brought Ms Peck to heel and the default was remedied. The situation is thus well-removed from that postulated by Mr Barnett (see [9]) as justifying the cancellation interpretation of s 116(3). I see the injustice to Ms Peck on the cancellation interpretation as balancing any awkwardness for the Corporation in the type of case envisaged by Mr Barnett on the suspension interpretation.
[46] For those reasons I would dismiss the appeal.

Solicitors:
Broadmore Barnett, Wellington for Applicant
John Miller Law, Wellington for Respondent