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Permanent Incapacity - 1972 & 1982 Acts Can claimants sue?

#1 User is offline   ernie 

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Posted 12 November 2004 - 12:35 PM

I've created a new thread for this discussion:

fairgo:

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Interesting point ernie, and one we have been discussing in depth in our group. We have one man who has 'should be assessed for section 60' several times in his file and yet he was never assessed. Life would have been a huge load easier for him with the security of a permanant pension behind him....

That prompted me to look at my own file. I am covered under the 82 act. I met all the criteria for section 60 in May 1992. I had been assessed as having a permanant disability (which meant my condition had stabilised) and even have an 'exit from rehabilitation' form and interview which indicates that my rehab was complete as far as ACC were concerned. That was on 15th May. I had until July 1 to lodge a claim under section 60 and till Oct 92 to have the assessment carried out. There was some discussion about this and I was informed by my Rehab. Officer that ACC were "not doing those any more cos a new act was coming in that removed the permanant pension"....... being naive I didn't pursue it at the time...... I didn't realise that it was a right.

Now 12 years down the track, still partly incapacitated for work, having been through the WCAP, been to court and won back entitlement I am now being put through the process again.... had my IOA last Friday. It just doesn't end....

Sorry this is so long but the frustration of retrospective legislation and how it has been detrimental to my situation just really pisses me off some times! 
Interesting to think that there would be a possible comeback taking an action in tort against ACC for misfeasance or breach of statutory duty.


People who met the criteria under section 60 of the 1982 Act to be assessed for permanent earnings-related compensation may still have rights in common law, despite the Limitation Act 1950, if they have remained unaware that ACC was lawfully required to assess them when their medical condition was stabilised and all practicable steps had been taken towards their retraining and rehabilitation.

Section 60 did not require a claimant to make an application for permanent earnings-related compensation. Rather, it provided that if a particular claimant met the criteria contained in that section - i.e. has not completely recovered from injury, condition has stabilised, and all practicable efforts at rehabiitation and retraining have been carried out, ACC had a statutory obligation to do the section 60 assessment.

If ACC failed to carry out that statutory obligation, such a failure is actionable in tort, and you may be able to claim both compensatory and exemplary (i.e. punative) damages for this. There is the hurdle of the Limitation Act 1950 to get past in bringing such an action this long after the event - but if you were given false information by ACC or never made aware until recenly reading your file that they should have assessed you, this may be cured in most instances of this by section 28 of the Limitation Act, which provides that time, in terms of the limitation on bringing an action, does not begin to run until you discover the mistake or could, with reasonable diligence, have discovered it.

Anyone with 1972 or 1982 Act cover and still incapacitated may do well to take legal advice about taking an action in tort against ACC for failure to carry out its statutory obligations.
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#2 User is offline   fairgo 

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Posted 12 November 2004 - 02:13 PM

The realisation that I actually should have had this assessment only occurred when I looked at my file about a month ago after reading the story in the Sunday Star Times about the permanant pension and having a discussion with others in our group.... The dates and info given above lead me to believe that ACC failed in their statuory duty and gave me inaccurate advice at the time. Being naive I never bothered to question the legality of what I was told....

The only other indication on my file is the comment " I assume we will move to permanant makeup compensation."

Would make for a few ruffled feathers me thinks.....
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#3 User is offline   greg 

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Posted 12 November 2004 - 02:40 PM

Could this be about the 30% figure quoted on these sites that Wilson
can not get exited ? The 72 & 82 acts were mentioned. :D :ph34r:
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#4 User is offline   ernie 

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Posted 12 November 2004 - 02:53 PM

Yes. The transitional provision of section 368 of the 2001 Act prevents anyone who had an entitlement to weekly payments for permanent incapacity under section 60 of the 1982 Act or section 114 of the 1972 Act from being exited through vocational independence assessment. It also prevents them from having their weekly compensation abated because of any earnings they may receive.
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#5 User is offline   magnacarta 

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Posted 12 November 2004 - 03:06 PM

some good authority on this s.60 permanent incapacity seems to be King v ARCIC M1738/92 Barker J. High Court Auckland.

His Honour said "I am glad I have been able to come to a similar conclusion in this case because acceptance of the Corporation's submissions would have resulted in an injustice caused by the Corporation refusal to consider this man's claim until the new Act came into force and then, with "crocodile tears", to regret that it had no power to consider his request for assessment."

Also look at Dean v ACC 1981 1 NZLR 750, 753-4 NZCA

This all sounds exactly like what ACC is doing with the Peck cases (backdating of erc following compliance) and awaiting the new Amendment Bill No 3.
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#6 User is offline   fairgo 

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Posted 12 November 2004 - 09:20 PM

I can only tell you how mine was done.
A visit to the orthopaedic surgeon who did my surgery. He asked questions about my injury and how it affected my life. He did various tests such as ankle jerk, ability to bend etc and then sent off a report with his estimation of % disability.
At that time most people's main 'payout' related to the $10,000 pain and suffering and loss of enjoyment of life section. That required the claimant to write in to ACC explaining how the injury had affected their life.
I can see no mention anywhere of AMA guidelines...
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#7 User is offline   doppelganger 

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Posted 12 November 2004 - 10:59 PM

In the Dean case Justice Woodhouse made it clear that all claimants under the 72 Act was assessed for there permenant incapacity. this was how the Act was written.

Quote

"any case where a person ....does not completely recover from his incapacity"  those words shut out from conideration the generalitly of injured persons and having done so, those who remain are then subjected to further condition that the Corporation considers and is able to give affirmative answers to the matters of stabilisation, retraining and rehabilitation.


the orginial Act stated that all persons were assessed if they did not completely recover from there incapacity and onlyafter they had stablised, been retrained and rehabilitated.

Unfortunately the corporation had a policy not to rehabilitate when necessary and the assessments were made with out rehabilitation. this curated a larger debt that was necessary. MrWilson has already stated that the greater percentage of cost to compemsation is to the entitlement is from the pre 1992 Acts. this percentage is from claims that are under section 114 and 60.

with rehabilitation and the corporation has proven it is better to supply that not to supply. If we look at the history of a case manager from the Dunedin office we see that even being in a wheelchair for a great part of the day. Mr Russell McLeary had his accident when he was working as a farm worker. his motor bike accident in 1976 placed him in the wheelchair. The corporation supplied Mr McLeary with a rehabilitation program that alowed him to attend university and then gain a career with the ACC. this career gave Mr McLeary the access to him owning a 33 ha farm and continuning his social life. since the accident Mr McLeary has enjoyed the pleasures of owning a jet-boat and spending many hour jet-boating around the place. he has also continued to ride ATV's and did this very competive. last year he started up a busness with two other partners

Mr McLeary had the support of the ACC early in his incapacity and his rehabilitation that involved upskilling gave him the means to carry on his life better than most people.

most of the people on this board have not have rehabilitation in the vocational field and are unable toget it. if we were assessed tomorrow we would be at our full entitlement were Mr McLeary after his rehabilitation would received a nill entitlement.
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#8 User is offline   greg 

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Posted 13 November 2004 - 08:14 AM

Would I now be safe to believe this is the section 60 refered to
in the articial recently of an Auckland property owner / top tennis player.?

If so, I wonder why these same issues were not applied to the owner of
the Waihi Airport after being charged with fraud. Surely he was also
entitled to a non abated ERC.? :rolleyes: :rolleyes:
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#9 User is offline   jocko 

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Posted 13 November 2004 - 05:44 PM

Percentages of disability for respective injuries are in the back of the 1982 act. You had to have a capacity for work of 85% or less. Or plus 15% permanent disability. Their catchcry for EXIT and the end of permanent entitlement was "Everyone must be capable of doing something" A cruel arrogant ignorance, devoid of emotion or humane understanding.
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#10 User is offline   doppelganger 

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Posted 13 November 2004 - 06:34 PM

section 114 1972 Act

114. Assessment of permanent incapacity---
(1) In any case where a person suffers personal injury by accident in respect of which he has cover does not completely recover from the impact due to the accident, as soon as the commission considers that (as far as the consequences of the injury are concerned) his medical condition is stabilised and all practicable steeps have been taken towards his retraining and rehabilitation, the Commission shall review his case and make an assessment in writing of --
The nature and extent of his permanent incapacity; and
Whether that permanent incapacity has resulted in a permanent loss or diminution of his capacity to earn; and
The percentage which that permanent loss or diminution (if any) bears to permanent total loss of his capacity to earn; and
The amount to be paid to him thereafter (subject to subsection (4) of this section), being 80 percent of his permanent loss of earnings capacity (if any) due to the injury, or any greater weekly amount that may for the time being be payable to him in consequence of the injury in accordance with this section 116 Increased Compensation for full time earners with earnings below prescribes amount) of this Act. and
The weekly amount of earnings related compensation to be paid to him initially after the making of the assessment in respect of that permanent loss of earning capacity (if any), which amount shall, subject to subsection (8) of this section, be 80 percent of the weekly amount assessed under paragraph (d) of this subsection, or any greater weekly amount that may for the time being be payable to him in consequence of the injury in accordance with section 61 of this Act---



(2) For the purposes of an assessment under this section the Corporation shall determine an earner's permanent loss or diminution of his capacity to earn by comparing what he would have been earning in his pre-accident employment at the date of assessment if the accident had not happened, and what he is now capable of earning having regard to---
The opportunities for employment (if any) which, in the opinion of the Corporation, will reasonably exist for the injured person (whether as an employee or a self-employed person); and
The degree (if any) to which, having regard to those opportunities, his ability (or, in a case to which section 63 of this Act applies, his potential ability) to derive earnings has, in the opinion of the Corporation, been permanently diminished by reason of the incapacity.


(3) In making its assessment under subsection (1) of this section, the Corporation shall have regard to section 59 (3) and (8) of this Act and the said provisions shall apply to such an assessment as if any reference to temporary loss of earning capacity were a reference to permanent loss or diminution of capacity to earn and permanent loss of earning capacity.
(4) After the date of the assessment, the earnings related compensation payable to the person shall not be reduced by reason of any increase in his earning capacity, but the Commission may make a further assessment under subsection (1) of this section if the condition of the person has deteriorated as a result of the injury since the time of the last assessment.


(5) The earnings related compensation for the time being payable to the person under this section shall not be reduced by reason of any increase in his earning capacity.

(6) A copy of the assessment shall be given, --
In any case where it is made under subsection (1) of this section, to the injured person:
In an case where it is made under subsection (2) of this section, to the person to whom the initial payments of compensation under section 123 of this Act will be made

(7) Where an earner dies as a result of personal injury by accident in respect of which he has cover, if the Corporation has not made an assessment or determination under this section of the amount to be paid to him in respect of permanent total loss of earning capacity, and if any earnings related compensation is payable under section 65 of this Act to any dependant of the deceased person, the Corporation shall forthwith make an assessment in writing (which assessment shall be deemed, for the purposes of this section, to have been made at the date of his death) of the weekly amount that would have been payable to him under this section if he had not died but had suffered a permanent total loss of earning capacity and the assessment had been made at the date of his death under subsection (1) of this section.

(8) The Governor-General may from time to time, by Order in Council, specify a percentage or amount by which (subject to subsection (8) of this section) the weekly amount for the time being of any earnings related compensation assessed or determined in accordance with this section (or of that compensation as for the time being increased in accordance with this subsection) shall increase. Any such Order in Council may be made in relation to all such compensation or to such class or classes thereof as may be specified in the order, and may prescribe any limitation as to its effect, whether by way of reference to any persons or classes of persons, or the time at which an accident has happened, or the date at which an assessment or determination under this section has been made, or (in the case of an assessment made under subsection (6) of this section) is deemed to have been made, or to the purposes for which the increase is to apply, or by way of any other specification, stipulation, condition, inclusion, or exclusion whatsoever. The Order in Council or any part or parts thereof may be made so as to come into effect on a date or dates to be specified therein in that behalf, being either the date of the Order in Council or any other date or dates, whether before or after the date thereof.

the 1982 Act
60. Assessment of permanent incapacity---(1) Where an earner who
suffers personal injury by accident does not completely recover from his
incapacity due to the accident, as soon as the Corporation considers
that (so far as the consequences of the injury are concerned) his
medical condition is stabilised and all practicable steps have been
taken towards his retraining and rehabilitation, the Corporation shall
review his case and make an assessment in writing of---
(a) The nature and extent of his permanent incapacity; and
(B) Whether that permanent incapacity has resulted in a permanent loss
or diminution of his capacity to earn; and
© The percentage which that permanent loss or diminution (if any)
bears to permanent total loss of his capacity to earn; and
(d) The weekly amount of his permanent loss of earning capacity (if
any), which amount shall be the appropriate percentage (being
the percentage assessed under paragraph © of this subsection)
of his relevant earnings for the time being; and
(e) The weekly amount of earnings related compensation to be paid to
him initially after the making of the assessment in respect of
that permanent loss of earning capacity (if any), which amount
shall, subject to subsection (8) of this section, be 80 percent
of the weekly amount assessed under paragraph (d) of this
subsection, or any greater weekly amount that may for the time
being be payable to him in consequence of the injury in
accordance with section 61 of this Act---

and shall pay him earnings related compensation in accordance with the
assessment.

(2) For the purposes of an assessment under this section the
Corporation shall determine an earner's permanent loss or diminution of
his capacity to earn by comparing what he would have been earning in his
pre-accident employment at the date of assessment if the accident had
not happened, and what he is now capable of earning having regard to---
(a) The opportunities for employment (if any) which, in the opinion of
the Corporation, will reasonably exist for the injured person
(whether as an employee or a self-employed person); and
(B) The degree (if any) to which, having regard to those
opportunities, his ability (or, in a case to which section 63 of
this Act applies, his potential ability) to derive earnings has,
in the opinion of the Corporation, been permanently diminished
by reason of the incapacity.

(3) In making its assessment under subsection (1) of this section, the
Corporation shall have regard to section 59 (3) and (8) of this Act and
the said provisions shall apply to such an assessment as if any
reference to temporary loss of earning capacity were a reference to
permanent loss or diminution of capacity to earn and permanent loss of
earning capacity.

(4) Subject to subsection (8) of this section, if at any time or times
after the making of an assessment under subsection (1) (e) of this
section, it appears to the Corporation that the capacity of the person
to earn has deteriorated as a result of the injury since the date on
which the assessment was made, or was last determined in accordance with
this subsection (as the case may be), the Corporation may determine that
the weekly amount of compensation for the time being payable under this
section shall be increased, as from the date of its determination, by
such amount as, having regard to all the circumstances, it considers
appropriate.

(5) The earnings related compensation for the time being payable to
the person under this section shall not be reduced by reason of any
increase in his earning capacity.

(6) Where an earner dies as a result of personal injury by accident in
respect of which he has cover, if the Corporation has not made an
assessment or determination under this section of the amount to be paid
to him in respect of permanent total loss of earning capacity, and if
any earnings related compensation is payable under section 65 of this
Act to any dependant of the deceased person, the Corporation shall
forthwith make an assessment in writing (which assessment shall be
deemed, for the purposes of this section, to have been made at the date
of his death) of the weekly amount that would have been payable to him
under this section if he had not died but had suffered a permanent total
loss of earning capacity and the assessment had been made at the date of
his death under subsection (1) of this section.

(7) The Governor-General may from time to time, by Order in Council,
specify a percentage or amount by which (subject to subsection (8) of
this section) the weekly amount for the time being of any earnings
related compensation assessed or determined in accordance with this
section (or of that compensation as for the time being increased in
accordance with this subsection) shall increase. Any such Order in
Council may be made in relation to all such compensation or to such
class or classes thereof as may be specified in the order, and may
prescribe any limitation as to its effect, whether by way of reference
to any persons or classes of persons, or the time at which an accident
has happened, or the date at which an assessment or determination under
this section has been made, or (in the case of an assessment made under
subsection (6) of this section) is deemed to have been made, or to the
purposes for which the increase is to apply, or by way of any other
specification, stipulation, condition, inclusion, or exclusion
whatsoever. The Order in Council or any part or parts thereof may be
made so as to come into effect on a date or dates to be specified
therein in that behalf, being either the date of the Order in Council or
any other date or dates, whether before or after the date thereof.

(8) Notwithstanding anything in this section, the weekly amount of
earnings related compensation that is, for the time being, payable to
the injured person, or, in a case to which section 65 of this Act
applies, would for the time being have been payable to him in accordance
with this section shall not exceed the maximum amount for the time being
prescribed for the purposes of section 59 (10) of this Act.
Cf. 1972, No. 43, s. 114; 1975, No. 136, s. 18; 1978, No. 36, s. 8
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#11 User is offline   doppelganger 

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Posted 13 November 2004 - 06:59 PM

yes you are right Greg. his case is just one of many that the ACC are looking at to see if there is any flaws into there being paid compensation under these sections.

in Mr Pages case Mr Page had a condition that he was not awere of the condition until 1988. the doctors had given him tranquillising drugs to help him cope with work he made his claim on 25 May 1992 after he had gone through the withdrawal programme and this came under the 82 Act.

his claims covered money owed to his parents, farm loans, and pension entitlement loss.

It seams that Mr Page had access to money before a claim was made. it wouldn't be supprised if Mr Page had looked at his realstate before he knew that his medication was afecting his decision making.

It also should be noted that on leaving school he as ofered a top management training position with Fisher & Paykel which in turn led to his being offered a postion at Winstone Limited.

his decision is Number 239/96.
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