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Thomas v Accident Compensation Corporation [2007] NZACC 219 (10 September 2007)

New Zealand Accident Compensation Appeals

Thomas v Accident Compensation Corporation [2007] NZACC 219 (10 September 2007)

Last Updated: 19 June 2008

IN THE DISTRICT COURT
HELD AT AUCKLAND

Decision No. 219/2007

IN THE MATTER of the Injury Prevention, Rehabilitation

and Compensation Act 2001

AND

IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ALAN THOMAS

(AI 406/06 )

Appellant

AND ACCIDENT COMPENSATION

CORPORATION

Respondent

HEARD at AUCKLAND on 13 August 2007

APPEARANCES

Mr A Thomas in person.

Mr D Tui, Counsel for the Respondent.

DECISION OF JUDGE M J BEATTIE

[1] By Notice of Appeal dated 23 October 2006, the appellant lodged an appeal from a

Review Decision dated 10 March 2006 and identified as Review Number 43640.

[2] The primary decision sought to be reviewed was the decision of the respondent dated 17 November 2005 relating to an application made by the appellant for him to be assessed under Section 60 of the Accident Compensation Act 1982 for permanent incapacity. [3] The respondent's decision stated as follows:

"It appears that you have recently made a claim for a permanent incapacity assessment under Section 60 of the 1982 Act.

Section 368(4) of the 2001 Act provides that no compensation is payable in relation to a permanent incapacity assessment under the 1982 Act unless the assessment was

completed before 1 October 1992 or after 1 October 1992 as a result of an Application for Review lodged before 1 October 1992.

No assessment was undertaken before 1 October 1992, nor was a Section 60 decision

issued before that date. Accordingly, you are not entitled to a permanent incapacity assessment under Section 60 of the 1982 Act."

[4] A Review Hearing relating to that decision took place on 21 February 2006, at which

the Reviewer conducted an inquiry into the history of the appellant's claim for weekly compensation, the nature of his injury, and all matters that may be associated with an application for a Section 60 assessment.

[5] In her decision dated 10 March 2006, the Reviewer found as follows:

"I find that there is no evidence that an assessment for the purposes of Section 60 was ordered or completed before 1 October 1992. I further find that there is no evidence that a review decision has been filed before 1 October 1992 and a Reviewer has directed

ACC to have Mr Thomas assessed for Section 60.

I find that there is no evidence to support Mr Thomas's submission that ACC have a

duty to assess him for Section 60 because it was determined on a number of occasions that his injury had not stabilised.

I find that the decision in White v ACC CIV 2005-409-629 (Christchurch Registry)

Justice Randerson, applies to Mr Thomas's application and he is therefore barred from a Section 60 determination."

[6] The appellant has filed written submissions of some 155 pages in support of his

appeal and with the best will in the world I cannot discern any sense from them. At best, it can be contended by the appellant that he is complaining of the fact that the Corporation would not undertake a Section 60 assessment and it is that which he is complaining of.

[7] The central issue in this appeal is a statutory provision of the Accident Compensation Act 1982 in respect of which the District Court has no jurisdiction to consider primary decisions of the Corporation made under that statute. Accordingly, this Court has no jurisdiction to investigate the multifarious complaints which the appellant may have about the actions of the Corporation in relation to any Section 60 application or the Corporation's failure to act in that regard.

[8] This Court's jurisdiction is confined to a consideration of the decision which is the

subject of this appeal, namely the respondent's decision of 17 November 2005, and the

correctness of that decision after consideration of the statutory provisions of the 2001 Act that may relate to that decision.

[9] The 2001 Act contained a number of transitional provisions which sought to preserve

claimants' rights as they had arisen under previous Accident Compensation legislation, despite the repeal of that earlier legislation.

[10] One such provision is Section 368 of the Act which is specifically directed to Section 60 of the 1982 Act, and its forerunner Section 114 of the 1972 Act. The issue raised by this appellant was the very issue considered by Justice Randerson in the decision of White (supra). At para 33 and following, His Honour stated as follows:

"(33] The scheme of s 368 is to continue weekly payments of compensation under s60 of the 1982 Act where a person was receiving such payments before 1 April 2002: s 368(2) and (3).

[34] Where no such payments are being received at 1 April 2002, there may still be an entitlement to payments under s 60 if the terms of s 368(4) are satisfied. The person must satisfy both of two statutory conditions:

1. That an assessment of compensation under s 60 has been made; and
2. That such assessment was completed either:
   1. Before 1 October 1992 or
   2. Was completed after 1 October 1992 only because an application

for review of a decision about the assessment was lodged before 1 October 1992 under Part IX of the 1982 Act.
[35] Section 368 is not happily drafted but its intent is clear. Under s 368(4)(b)(I)

if the s 60 assessment has been completed prior to 1 October 1992 but payments had not been commenced by 1 April 2002, then the claimant is entitled to weekly payments under s 60 notwithstanding. Plainly, the appellant does not meet these criteria because no assessment had been made at all prior to 1 October 1992.
[36] Under s 368(4)(b)(ii) there is one other option for s 60 entitlement. If no

assessment has been completed under s 60 prior to 1 October 1992 only because an application for review of a decision about the assessment has been lodged under the 1982 Act before 1 October 1992, then once the assessment is made and

completed after 1 October 1992, the claimant is entitled to payments of such weekly compensation as is assessed to be due.

[37] The appellant does not meet the conditions of s 368(4)(b)(ii) because there

was no pending application for a review of a decision about the assessment under s 60 lodged before 1 October 1992."

[11] The circumstances of this appellant mirror those of the appellant White in that no assessment had been made in respect of his permanent incapacity prior to 1 October 1992, nor was there any decision made before 1 October 1992 in respect of an assessment which was the subject of review or appeal.
[12] In his submissions the appellant relied on the decision of King v ACC [1994] NZAR 159. Justice Randerson distinguished King on the facts, as do I for the same reasons he gave. In the King decision Justice Barker determined, on the facts, that prior to the relevant cut-off date the Corporation had effectively decided to make a nil award under Section 60. That situation does not pertain in the case of this appellant.
[13] Accordingly, I find that the respondent was correct to decline the appellant's application for a Section 60 assessment as it did, and the Review Decision determining the correctness of that decision is upheld.

This appeal is dismissed.

DATED at AUCKLAND this 10th of September 2007

M J Beattie

District Court Judge