[gommer krinkle]

Section 103 of the 1972 Act provides that for the purposes of the Act "earnings as an employee" includes "any wages,salary, allowances (including allowances of any of the kinds reffered to in s.89 of the Land and Income Tax Act 1954), holiday pay, overtime pay, long service leave pay, bonuses, gratuities, extra salary, commissions, directors fees, honoraria, emoulments, or remuneration of any kind paid or payable (whiether in piece rates or otherwise and whiether in cash or ohterwise) to any person in respect of or in relation to the employment of that person as an employee"

The wording in s.52 of the 1982 Act is the same.

Check that all have been included in your original calculation of ERC, this appplys to anything (free accommadation, meat provided by employer, free telephone usage etc)

Supporting case law - Stephen William George Price v ACC, Decision No 212/90, Accident Compensation Appeal Authority, Judge A.W.Middleton, Decision 17th August 1990.

Robert Wayne Welsh v ACC, High Court Dunedin, N 73/93, Fraser J, Judgement 22nd March 1994.

ARCIC v Lewis, High Court Auckland, 149/93, Barker J, 13th April 1994.

Could be worth a lot of money to some people, your main problem will be in confirming old records, good luck.

[doppelganger]

and this includes and transoprt if there was a transport levie paid when using personal vehicles
Doppelganger

[Tomcat]

Greetings ,
Thank you Gommer... Esther Young at Tech Claims ... Henderson...
and Cara Somers ... Have been fully informed of the details...Several times...
But chose to ignore it saying, "It did not apply to my situation and that long service payments etc... dont apply either, as they didnt come til 1979... got this in writing... They have excluded all that stuff... and have used the wrong rates to calculate ERC.....
stating very clearly, I have to prove it is wrong... when they already have that info on hand and have done for many many years...


So... in light of the sequence of events and the huge RIP OFF of my back pay...

I say this with out prejudice...

I BELIEVE THAT THE "MAIN ARSEHOLE"... GAVE THE ORDER... TO CHOP... CUT... REDUCE....

and I want and will have his head on a plate... its only a matter of time...
When it comes to the "crunch" the minions will squeal very loadly...

Tomcat

[gommer krinkle]

One of the main mistakes ACC staff seem to make is that at one point of course allowances that where paid to you by your employer where not a tax deduction that could be claimed by your employer, another words it was it had a tax (gross) content, prior to this date (may have been 1986, but not sure) any allowance paid to you was out of the emplyers pocket, ACC seem to have the idea that if it is not listed in the Income Tax Act as a listed allowance, then it cannot be part of your remuneration, the High Court in Lewis put this to rest however.

[gommer krinkle]

Been talking to my Accountant re taxable allowances, Fringe Benefit Tax came in around 1988 and those allowances that boost your PAYE are subject too it, the list of allowances in the ITA is not fully inclusive, but is just a guide, claims re allowances will be considered by IRD on a case by case basis if there status is unclear, the ITA lists both taxable and non taxable allowances, ACC need to include any allowance that is related to your employment as part of your remuneration and inclusive in the calculation of earnings, it does not matter if that allowance is listed in the ITA or not, non taxable allowances in terms of calculation by ACC need to be grossed up by 12.5% as part of your total calculation earnings as a gross figure, you then get 80% of this as ERC.

[greg]

Since we are talking 82 .. 92 acts interest and wayne's comments.
Where would a reduncy payment fit 4 months earlier?as related to ERC.

Any further info 2 yr's on

[greg]

Just found my ACC C3 Earnings Certificate Employee

There are 2 sets of calculations. box 1 Last 4 weeks

Box 2 during 12 prior to accident / or during the 12 months prior

box 1 figure $= box 2 $= ticked option

appro $100.00 difference

Which box should be ticked under the 82 act ??

[hukildaspida]

Refresh.

Good to now this information in relation to 1972 & 1982 http://www.acc.co.nz Acts.

What has happened to 'gommer krinkle'?

gommer krinkle, on 04 January 2004 - 06:50 PM, said:

Section 103 of the 1972 Act provides that for the purposes of the Act "earnings as an employee" includes "any wages,salary, allowances (including allowances of any of the kinds reffered to in s.89 of the Land and Income Tax Act 1954), holiday pay, overtime pay, long service leave pay, bonuses, gratuities, extra salary, commissions, directors fees, honoraria, emoulments, or remuneration of any kind paid or payable (whiether in piece rates or otherwise and whiether in cash or ohterwise) to any person in respect of or in relation to the employment of that person as an employee"

The wording in s.52 of the 1982 Act is the same.

Check that all have been included in your original calculation of ERC, this appplys to anything (free accommadation, meat provided by employer, free telephone usage etc)

Supporting case law - Stephen William George Price v ACC, Decision No 212/90, Accident Compensation Appeal Authority, Judge A.W.Middleton, Decision 17th August 1990.

Robert Wayne Welsh v ACC, High Court Dunedin, N 73/93, Fraser J, Judgement 22nd March 1994.

ARCIC v Lewis, High Court Auckland, 149/93, Barker J, 13th April 1994.

Could be worth a lot of money to some people, your main problem will be in confirming old records, good luck.

[Moeroa]

Who is this "main arsehole"?

Tomcat, on 04 January 2004 - 08:27 PM, said:

Greetings ,
Thank you Gommer... Esther Young at Tech Claims ... Henderson...
and Cara Somers ... Have been fully informed of the details...Several times...
But chose to ignore it saying, "It did not apply to my situation and that long service payments etc... dont apply either, as they didnt come til 1979... got this in writing... They have excluded all that stuff... and have used the wrong rates to calculate ERC.....
stating very clearly, I have to prove it is wrong... when they already have that info on hand and have done for many many years...


So... in light of the sequence of events and the huge RIP OFF of my back pay...

I say this with out prejudice...

I BELIEVE THAT THE "MAIN ARSEHOLE"... GAVE THE ORDER... TO CHOP... CUT... REDUCE....

and I want and will have his head on a plate... its only a matter of time...
When it comes to the "crunch" the minions will squeal very loadly...

Tomcat

[firecat]

Remember that the last part of the wording in s.52 1982 Act (s.103 1972 Act) is "..... remuneration of any kind (whether in cash or otherwise) ....."

So any benefit you may have had as part of your employment has a value which must be inclusive in the assessment for weekly compensation

For example, if your employer contributed to a superannuation scheme that part would be inclusive in the calculation.

Or as in the HC judgment in Lewis (1994) the value of the use of a motor vehicle had to be inclusive

There have been many old cases in recent years that have benefited from the Lewis finding, including my own

[Mark]

firecat, on 26 February 2012 - 10:17 PM, said:

There have been many old cases in recent years that have benefited from the Lewis finding, including my own

Ditto

Ask ACC to reconsider your ERC calculation in light of the Lewis decision.

There is the hurdle of "passing" the McDougall test ie satisfying the requirements to allow for a late application for review.

ACC's decision is reviewable and as per the Langhorne decision DRSL must hold the review as if it were the Accident Compensation appeal authority and that decision is appealed (if necessary) directly to the Accident Compensation Appeal Authority. NB. ACC must apply to heard.

Having good counsel is IMHO a must. But considering the amounts involved and interest of 20+ years an affordable decision.

See DRSL review #191256 & Davis v Accident Compensation Corporation [2012] NZACAA 1 (9 February 2012)

[fairgo]

Interesting...... I have a quick question that someone may be able to answer. Accident comes under the 82 act.

If a person initially had some time off work due to an injury but continued to work part time and their employer continued to pay them their full wages with ACC reimbursing the employer the wages for the time the person had off work...

AND during that part time incapacity the person had an annual wage rise and then went off work completely.... which amount should be used to calculate weekly comp? The $ amount at time of original injury OR the $ amount at the time the person stopped work due to incapacity when ACC started paying weekly comp directly to the person?

Just a question..........

[Mark]

fairgo, on 27 February 2012 - 08:05 AM, said:

Interesting...... I have a quick question that someone may be able to answer. Accident comes under the 82 act.

If a person initially had some time off work due to an injury but continued to work part time and their employer continued to pay them their full wages with ACC reimbursing the employer the wages for the time the person had off work...

AND during that part time incapacity the person had an annual wage rise and then went off work completely.... which amount should be used to calculate weekly comp? The $ amount at time of original injury OR the $ amount at the time the person stopped work due to incapacity when ACC started paying weekly comp directly to the person?

Just a question..........

Basically my case... Injured in 1988... finally put off work in 1991 (Date of incapacity Jan 1991).... my employer topped up the 80% to 100% for times I was off work. & claimed the 80% back from ACC.

ERC calculated on previous 12 months earning ie wage period jan 1990 thru jan 1991.

Would also pay to check that OIC pay rises have been applied correctly... in the 80's early 90's OIC pay rises were applied at date of injury not date of incapacity.

see Order in Council (Weekly Compensation Indexation) 1972 - 2010

[doppelganger]

fairgo, on 27 February 2012 - 08:05 AM, said:

Interesting...... I have a quick question that someone may be able to answer. Accident comes under the 82 act.

If a person initially had some time off work due to an injury but continued to work part time and their employer continued to pay them their full wages with ACC reimbursing the employer the wages for the time the person had off work...

AND during that part time incapacity the person had an annual wage rise and then went off work completely.... which amount should be used to calculate weekly comp? The $ amount at time of original injury OR the $ amount at the time the person stopped work due to incapacity when ACC started paying weekly comp directly to the person?

Just a question..........

This is the Subsection that I think is relevent

53 (9)

(9) Where any period of an earner's incapacity for work does not commence on the date of the accident, and the Corporation is of the opinion that relevant earnings ascertained in accordance with the foregoing provisions of this section do not fairly and reasonably represent the earner's normal average weekly earnings at the time of the commencement of the period of incapacity for work, the Corporation may, notwithstanding the foregoing provisions of this section, determine an amount which, in its opinion, would fairly and reasonably represent his normal average weekly earnings at the time of the commencement of the period of incapacity for work, having regard to such information as it may obtain regarding his earnings before the time of the commencement of the period of incapacity for work and his earnings at the time of the commencement of that period, and the period of his residence in New Zealand before the time of the period of incapacity for work and his work history, and such other relevant factors as the Corporation thinks fit; and any amount so determined shall be treated as if it was his relevant earnings for the purpose of assessing earnings related compensation during the particular period of incapacity for work:

Provided that any determination made under this subsection shall not bind or prejudice the Corporation or limit or restrict its discretions or powers with regard to any assessment or determination of that person's relevant earnings or loss of earning capacity during any other period of his incapacity for work to which the determination does not relate.

A case is Orr v ACC 146/90

[hukildaspida]

Please note this is from 1997.

Is anyone able to confirm if Judge Beattie and any other judges, at this time and workplace, do not hold a warrant in the jurisdiction of the Accident Compensation Appeal Authority, which deals with appeals under the 1972 and 1982 Accident Compensation Acts?

Has there been any changes in regards to this?

If so, when and what?

Beattie decides ACC case: [2 Edition]

The Press [Christchurch, New Zealand] 27 Sep 1997.

AUCKLAND -- An Auckland pensioner who wrongly received $18,000 in accident compensation payments will not have to repay the money, his advocate said.

John Joseph Green's appeal against the Accident Rehabilitation and Compensation Insurance Corporation (ACC) decision to stop the payments was dismissed by Judge Martin Beattie this week.

It was the judge's first ruling since his acquittal on 45 fraud charges.

However, Mr Green's advocate Howard Oliver said the ACC had waived repayment of the $18,000 because it had wrongly advised his client about claiming the money.

He said the corporation told Mr Green in February last year that he could continue to receive weekly compensation for loss of earnings until June this year, or change over to the pension.

However, in November the corporation wrote to the 63-year-old telling him it had made a mistake and wanted its money back, said Mr Oliver.

He said Judge Beattie's decision on the appeal related only to whether the corporation had acted correctly in stopping the payments after Mr Green became eligible for superannuation.

``It was solely to clarify a legal point.'' Mr Oliver said that ``reason prevailed'' when the ACC resolved to write off the overpayment several weeks ago.

Judge Beattie's decision, however, made no mention of that resolution.

Mr Green, who received lump sum payments after a 1990 motor accident but was forced to stop work in 1993 as a result of his injuries, did not want to comment publicly on the matter.

Judge Beattie determined the appeal as a District Court judge under the Accident Rehabilitation and Compensation Insurance Act 1992. He does not hold a warrant in the jurisdiction of the Accident Compensation Appeal Authority, which deals with appeals under the 1972 and 1982 Accident Compensation Acts.--NZPA

Illustration
CAPTION: Martin

Copyright Independent Newspapers, Ltd. Sep 27, 1997