ACCforum: Farquhar V Acc (304/2004) - ACCforum

Jump to content

Page 1 of 1
  • You cannot start a new topic
  • You cannot reply to this topic

Farquhar V Acc (304/2004) IOAs & IMAs - cover under earlier Acts

#1 User is offline   ernie 

  • Newbie
  • Pip
  • Group: Members
  • Posts: 0
  • Joined: 26-April 04

Posted 23 November 2004 - 02:23 PM

FARQUHAR v ACCIDENT COMPENSATION CORPORATION

District Court, Wellington (304/2004) 22 September 2004
Judge J Cadenhead

B Farquhar, In Person
H A Evans, for Respondent

RESERVED JUDGMENT OF JUDGE J. CADENHEAD

The Course of the Hearing

[1]The appellant originally brought three appeals: no AI 155/04 against review 25551, no AI 156/04 against review 25552, and no AI 167/04 against review 25385. At the appeal, in front of me, the appellant withdrew appeal No AI 155/04 and No AI 156/04. The appeal proceeded in respect to AI 167/04.

The Issue

[2]The issue in this case is whether the respondent, pursuant to section 117(3) of the Injury Prevention, Rehabilitation, and Compensation Act 2001, (“IPRC Act”) was incorrect in declining to pay entitlements to the appellant beyond 18 November 2003 on the basis of his refusal to undergo the Initial Occupational Assessment, because it considered that the appellant was unreasonable in complying with the request of the respondent so to do.

Background of Facts

[3]Mr Farquhar has cover for a back strain which occurred on 3 December 1994. On 6 October 2003, ACC wrote to Mr Farquhar requesting him to sign an ACC form to allow a referral to an occupational assessor to be made.

[4]On 22 October 2003 ACC wrote to Mr Farquhar advising him of appointment details with Mark Palmer for the initial occupational assessment.

[5]On 30 October 2003 Mr Farquhar wrote to ACC taking issue with the contents of the letter of 22 October 2003 noting that it was:

“false, inaccurate, incorrect and misleading. I have not made any such appointment with Mark Palmer, as you are implying! Delete your false, inaccurate, incorrect and misleading statements under the Privacy Act please…”

[6]ACC wrote to Mr Farquhar on 4 November 2003. In this letter it clarified that the letter of 22 October 2003 advised him that the appointment made by ACC, not Mr Farquhar himself. By letter dated 4 November 2003, ACC advised Mr Farquhar that his attendance at the appointment was essential. This letter referred to Mr Farquhar’s obligations under s.72 of the IPRC Act and noted that failure to meet these obligations might result in his entitlements being declined under s.117 of the Act.

[7]On 6 November 2003, ACC wrote again to Mr Farquhar to remind him of the appointment of 14 November 2003. Mr Farquhar wrote another letter to ACC (dated 3 November 2003 but received by ACC on 10 November 2003). In this letter he again repeated his claim that he did not come under the IPRC Act and stated that:

“Before anything else can be done, this point needs to be clarified and addressed.”

[8]ACC responded to this letter on 12 November 2003 again referring to the letter of 22 October 2003 explaining the transitional provisions relating to entitlement under the IPRC Act. This letter also reminded Mr Farquhar that a failure to attend the appointment with Mr Palmer would result in a suspension of entitlements “until such a time that you comply with this legislative requirement”.

[9]Mr Farquhar met with Mr Palmer but refused to participate in an assessment. Accordingly ACC wrote to him on 14 November 2003 and advised:

“ACC wrote to you on 12 November 2003. We told you that if you did not comply with this initial occupational assessment, and did not give a reasonable explanation for this, ACC would not continue to provide weekly compensation and reimbursement of medical fees. As you have not complied with the initial occupational assessment, and have not given ACC a reasonable explanation, ACC will not provide weekly compensation and reimbursement of medical fees from 18 November 2003. This support will be restarted if you do comply with an initial occupational assessment. However, the payments will not be backdated…”

[10]On 24 November 2003, ACC wrote again seeking to explain further to Mr Farquhar his obligations under the IPRC Act.

[11]Mr Farquhar lodged 3 applications to review in relation to his interaction with ACC at this time.

[12]The first against ACC’s failure to respond to his letter of 3 November;

[13]The second complaining about the reference to “you” in the letter of 22 October.

[14]The third against ACC’s decision to suspend entitlements as he had not participated in the IOA assessment.

[15]At this appeal the first two appeals have been withdrawn.

The Legislation and Legal principles

[16]The cover for injury in this appeal occurred before 1 April 2002 and s.355 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 provides:

“Claims for cover accepted under former Acts

(1)A person who has had a claim for cover accepted before 1 April 2002 for personal injury covered by the former Acts continues to have cover, and this Part applies accordingly.

(2)Subsection (1) does not apply if it is determined on or after 1 April 2002 that the person did not suffer personal injury covered by the former Acts.”

[17]Section 363 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 provides for the entitlements for the covered injuries arising by virtue of s.355 as follows:

“Application of sections 364 to 387

(1)Sections 364 to 380 provide for entitlements for a person who, having suffered personal injury before 1 April 2002, has cover accepted under any of sections 355 to 360.

(2)Sections 381 to 387 provide for entitlements for the spouse, children, and other dependants of such a person, if the personal injury for which the person has cover is death or is physical injuries from which he or she dies.

(3)The provision of entitlements arising from cover accepted under any of sections 355 to 360 is subject to Part 4 and Schedule 1, unless the effect of any of sections 364 to 391 is to the contrary.”

[18]Section 117 of the Act provides for the suspension or cancellation of entitlement and specifically under part 4 of the Injury Prevention, Rehabilitation, and Compensation Act 2001, accordingly s.363 of the legislation is applicable.

[19]Section 365 of the Act provides:

“365 Weekly compensation under Accident Insurance Act 1998
(1)This section applies to a person who,—
(a)immediately before 1 April 2002, was entitled to compensation specified in subsection (2); and
(b)on and after 1 April 2002, would have continued to be so entitled had the Accident Insurance Act 1998 not been repealed.
(2)The compensation is weekly compensation—
(a)based on weekly earnings calculated under section 287 or clauses 7 to 22 of Schedule 1 of the Accident Insurance Act 1998; or
(b)paid at an agreed rate under section 302C of that Act; or
©continued under section 428 or section 429 of that Act.
(3)On and after 1 April 2002, the compensation under subsection (2) continues to be payable at the rate payable as if it were calculated under this Act.
(4)However, the person's continued eligibility for weekly compensation and adjustments to the rate at which it is paid are subject to this Act.
(5)Despite subclause (4), clause 42 of Schedule 1 does not apply to the person if he or she is receiving weekly compensation calculated under—
(a)the Accident Compensation Act 1972; or
(b)the Accident Compensation Act 1982.”

[20]Section 369 of the Act provides:

“Cessation of weekly compensation under any former Act because of capacity for work

(1)Sections 100 to 113 apply to a claimant whose compensation is continued by section 365.”

[21]Sections 426(1) to (3) of the Accident Insurance Act 1998 provided that a person who had accepted cover before 1 July 1999 was entitled to the continuation of those entitlements. This section is couched in a similar format to that of s.363 of the present legislation.

[22]The recent Court of Appeal case of Withers (CA 129/03, 8 June 2004) Chambers J considered analogous transitional principles under the provisions of the 1998 legislation and he said at paragraph 25:

“We accept that Mr Wither’s entitlement was not a “statutory entitlement as defined” as defined in s13 of the 1998 Act, but we do not consider that that prevented ACC from relying on s116 in this case. That is because of the effect of section 426(3) of the 1998 Act “under Part 5”, unless the effect of ss427 to 450 was to the contrary. Clearly, the power to determine entitlements includes the power to determine the cessation of entitlements. Part 5 contained a provision to applicable to the suspension of entitlement: that was s116.”

Likewise the present legislation pursuant to s.365(3) provided for the continuance of entitlement subject to Part 4 of the present Act, which provided for the power suspend or cancel by s.117.

[24]Further, s.369 of the present Act provides for the cessation of weekly compensation under any former Act because of capacity for work and that sections 100 to 113 apply to a claimant whose compensation is continued by s.365.

[25]In my opinion, the legislation is clear that present compensation payments, and entitlements arising under earlier legislation, may be cancelled or suspended under the present legislation. Further, the present legislation specifically provides that issues of capacity in respect to this type compensation will be governed by ss.100 to 113 of the present Act.

[26]The appellant has argued that this type of reasoning means that the statute is being construed retrospectively. Sections 6 and 7 of the Interpretation Act 1999 provide:

Section 6. Enactments apply to circumstances as they arise

An enactment applies to circumstances as they arise.

Section 7. Enactments do not have retrospective effect

An enactment does not have retrospective effect.

[27]These sections preserve the distinction between the substance/procedure distinction. The presumption is that matters of substance are not construed retrospectively, while matters of procedure and evidence are construed against the law presently existing. In the Accident Compensation legislation, matters of suspension and cancellation and capacity to work issues have been regarded as of a procedural nature. However, if a transitional provision is express and clear then these presumptions do not come into play (see Statute Law in New Zealand, Burrows, pp404 to 413.)

The Submissions of the Appellant

[28]The appellant submitted that the 1998 and 2001 Acts did not have retrospective effect. The respondent could not use provisions of these later Acts that did not exist at the time of the covered injury. He submitted that incapacity provisions of the 1992 legislation were singularly different from the mechanism provided by the 2002 legislation.

[29]The appellant referred to Watton (CA 277/99 10 April 200) and that the function of a savings provision would preserve any rights, powers, or privileges, which may have accrued under earlier legislation. This principle was enshrined in ss.20 and 20A of the Acts Interpretation Act 1924, now s.17 of the Interpretation Act 1999.

Submissions of the Respondent

[30]On 22 October 2003, ACC wrote to Mr Farquhar advising of details of an appointment with Mark Palmer for an initial occupation assessment. The assessment was due to be undertaken on 14 November 2003 at 10.30 am.

[31]Mr Farquhar wrote to ACC maintaining that he did not come under the jurisdiction of the Injury Prevention, Rehabilitation, and Compensation Act 2001, but would comply with his obligations under the Accident Rehabilitation and Compensation Insurance Act 1992.

[32]By letter dated 24 October 2003, ACC advised Mr Farquhar of his obligations under the IPRC Act.

[33]ACC re-iterated its advice on 4 November that his attendance at the appointment was essential. This letter referred to Mr Farquhar’s obligations under s.72 of the IPRC Act and noted that failure to meet these obligations might result in his entitlements being declined under s.117 of the Act.

[34]On 6 November 2003, ACC wrote again to Mr Farquhar to remind him of the appointment of 14 November 2003.

[35]Mr Farquhar’s letter dated 3 November 2003 (received by ACC on 10 November 2003) repeated his claim that he did not come under the IPRC Act.

[36]ACC responded to this letter on 12 November 2003 again referring to the letter of 24 October 2003 explaining the transitional provisions relating to entitlement under the IPRC Act. This letter also reminded Mr Farquhar that a failure to attend the appointment with Mr Palmer would result in a suspension of entitlements “until such a time that you comply with this legislative requirements”.

[37]Mr Farquhar did not participate in the assessment with Mr Palmer and accordingly ACC wrote to him on 14 November 2003 advising that his entitlements were suspended. On 24 November 2003 ACC wrote again seeking to explain further to Mr Farquhar his obligations under the IPRC Act.

[38]It is clear that Mr Farquhar did not comply with the requirement that he participate in an initial occupational assessment.

[39]Mr Farquhar was warned on several occasions of the consequences of doing this. The reason he has given for refusing was because he didn’t think he was subject to the Act. It is submitted that this is the same position in relation to the IPRC Act. Transitional claimants are subject to Part 4 of the IPRC Act, by virtue of s.363. This of course includes the appellant. Accordingly, the appellant’s obligations under s.72 (which is in part 4 of the Act) and the requirement to attend the initial occupational assessment, did apply to Mr Farquhar.

[40]Mr Farquhar had been advised of the jurisdictional issues on several occasions. It is submitted that his refusal to undergo the assessment based on a misconceived jurisdictional point, which had been discussed by ACC with him, on several occasions, was not reasonable.

[41]As noted by the reviewer at page 14 of the review decision, ACC had made it abundantly clear to Mr Farquhar in several letters the consequences of his failure to undergo the initial occupational assessment. ACC had also explained to him why he was required to undergo the assessments. The reviewer determined that Mr Farquhar was unreasonable in not complying. It is submitted that the reviewer’s finding in this regard should be upheld.

Decision

[42]For the reasons that I have given I believe that the transitional provisions of the 2001 statute are clear and that power of suspension and cancellation, along with the work capacity procedure are to be dealt with under the provisions of the 2001 Act. If this view is wrong, then I would hold that the provisions concerning suspension, cancellation and work capacity are procedural mechanisms regulating the payment of existing compensation payments and the provisions of the repeal provisions of the Acts Interpretation Act 1999 do not help, as the present right to compensation must be found in the transitional provisions of the present legislation (see Burrows, Statute Law in New Zealand pp 418 to 426).

[43]I find that the appellant, in the face of the warnings, unreasonably failed to comply with the initial occupational assessment made by the respondent. For the reasons that I have given this appeal is dismissed. There will be no order as to costs.
0

Share this topic:


Page 1 of 1
  • You cannot start a new topic
  • You cannot reply to this topic

1 User(s) are reading this topic
0 members, 1 guests, 0 anonymous users