Basically as you have provided a list of occupations here to Doppleganger, my question would be how you distinguish your circumstances PRE-INJURY and POST-INJURY with these following sections may be helpful to you & readers...
Alan Thomas, on 15 June 2017 - 08:32 PM, said:
Project management
Mechanical engineering
Mechanical design engineering
Tool-making
Welding
Machine shop work
Panel-beating
Control systems engineering
Systems Engineering
Sales Engineering
plus lots of other tasks ....
Alan stated, "They made a s59 decision when they realised their mistake but only after making 5 failed attempts at other decisions but the reviewer over turned s59 early in 1992"
For example of an immediate conflict of information existing within this forum, I have noted that you frequently allege your relevant earnings were ABOVE the maximums permitted. BUT then the fact is your ERC was actually only a small moderate amount of approx $330 per week.
Was this due to any of the following sections being considered such as your bankruptcy problems before the ACC claiming?
I am endeavouring to look at the process involved with getting to a Section 59 Determination &or any confusion eliminated...
53. Relevant earning
3(c ) The average amount of his earnings as a self-employed person during any of the periods of 2 or 3 or 4 consecutive financial years last ended before the day immediately following the date of the accident, or, if the Corporation, in the exercise of its discretion, so decides, during anyone or more of those financial years which it may select as appropriate for the purpose:
You have now said ACC made five decisions relating to Section 59 issues. Were you required to provide financial statements for FOUR years before your *hernia* Alan? If not, do you know why?
Then we get to the Section 57 of the 1982 Act, which likely relates to the Employer for the part-time position you were in when you had your alleged hernia Alan ...
Were you able to resolve the conflicting evidence described in the NZLII? You describe your hernia to be a result of possible negligence. You disregard any health predisposition and there is no mention of any *inducement* or contribution on your part to this alleged injury etc Were all of these factors canvassed within your original claim documents &or subsequent court proceedings?
Are these some of the reasons involved which explain the circumstances why you say ACC needed to make 5 decisions? If not, were there other Sections involved?
(l) Where as a result of incapacity due to personal injury by accident arising out of and in the course of his employment an employee is unable, during the working week comprising the day of the accident and the 6 days thereafter, to work in paid employment as an employee as much time in the aggregate as he would have so worked if he had not suffered the incapacity, then, without prejudice to any rights he may have under any contract of service or conditions of employment, that employee shall be paid in accordance ...
(5) Before an employer or the Corporation makes any payment to an employee under this section, the employer or the Corporation may require satisfactory evidence of the accident, injury, and incapacity, or any of them, including a certificate by a registered medical practitioner; and where the Corporation is required to meet any claim by an employee for any compensation or payment under this section, it may require the employee to produce such evidence as it considers necessary to determine the amount properly so payable. ...
7(d) Where the accident occurs in the course of his employment and is caused by another person's misconduct, skylarking, or negligence, or by the behaviour or presence of any animal, bird, fish, insect, or reptile, or by any force of nature, and the employee did not directly or indirectly induce or contribute to the happening of the accident by any act not incidental to his employment; or
Then we finally get to Section 59 and your claims about your ACC Claim and ACC Decisionmaking for weekly monetary compensation. I think 5(a) and (b ) regarding the discretion and evidence requirements may be one section you may have overlooked. I have increased some font sizes of the issues or sentences which I would like to draw attention too FYI
( I) Where, as a result of incapacity due to personal injury by accident, an earner suffers any temporary loss of earning capacity as determined under the provisions of this section during any period after the expiration of the working week comprising the day of the accident and the 6 days thereafter, the Corporation shall pay him earnings related compensation in respect of that loss at the rate of 80 percent of the amount of his loss of earning capacity due to the injury.
(2) For the purposes of this section, an earner's temporary loss of earning capacity due to the injury shall, subject to this section, be determined by deducting from the amount of his relevant earnings for a like period the aggregate of the amount of his earnings as an employee (if any) and the amount of his earnings as a self-employed person (if any) during the period: Provided that if the Corporation considers, having regard to the medical and other evidence available to it, that the earner IS
(a ) Not endeavouring to work or earn in paid employment to the extent of his capacity; or
(b ) Not working or earning in paid employment to the extent to which he would be able to do so if the only factor affecting his ability to work or earn in paid employment were his incapacity for work due to the injury,the Corporation may fix the amount to be so deducted at such figure as it considers appropriate.
(5) Notwithstanding the foregoing provisions of this section, where it is likely that the commencement of the payment of earnings related compensation under this section for any period will be unduly delayed on account of difficulties or uncertainties which may arise in ascertaining the amount of the relevant earnings of the incapacitated person or his earnings as an employee or as a self-employed person during that period, the Corporation, in its discretion, may do all or any of the following:
(a ) The Corporation may, having regard to the evidence which is presently available, determine a person's loss of earning capacity for any period of his incapacity at such amount as it considers will provide fair and just compensation without being required to make assessments of relevant earnings and actual earnings: Provided that any such determination shall not bind or prejudice the Corporation or limit or restrict its powers with regard to any determination of that person's loss of earning capacity during any part of the period of his incapacity to which the determination does not relate:
(b ) Where the Corporation has not received sufficient evidence to enable it to determine the relevant earnings or actual earnings of any person for any period it may make an interim determination of the person's relevant earnings or actual earnings, as the case may be, for the period, having regard to other evidence that it has received in respect of that person (whether for that period or any other period) and to all relevant circumstances, and may make payments to the person on account under subsection (1) of this section for such period and at such rate as the Corporation thinks fit: Provided that the rate shall not exceed 50 percent of the earnings related compensation for the time being as ascertained by reference to an interim determination of the person's relevant earnings or actual earnings as aforesaid: Provided also that any payments of earnings related compensation made by the Corporation under this paragraph in excess of the proper entitlement under subsection (1) of this section shall constitute a debt due to the Corporation which may be recovered by the Corporation in accordance with section 114 of this Act. (
So by this stage I see numerous difficulties with many of your allegations and counterclaims Alan. When you rarely link to corresponding sections or provide objective evidence, I believe the confusion and risks of misinterpretation also escalate astronomically IMHO
Alan Thomas, on 16 March 2007 - 01:36 PM, said:
"PRESUMABLY" is likely the point where you have gone wrong or way off track Alan ...
Without any evidence you are just guessing mickeymouse stuff and wasting reader time continually with word and mindgames unfortunately Alan...
For example, this idea of *reconstructive surgery* is not something I would ever expect any Surgeon in the world could guarantee 100% today. Let alone such Guarantees existing 25 years ago etc Likewise you continually allege a surgeon committed Assault but this was examined and dismissed in Court. IMHO it may be more a case of routine evaluation during the operation by the surgeon, or at worse minor medical misadventure &or comparable to routine procedures which would be done by other surgeons and blah blah ....
As for your second factor of *provide occupational rehabilitation into a new occupation* this too is something which you muck about with ad nauseum IMHO.
ALSO if you still 25 years later refuse to meaningfully discuss or evidence this word, then how on earth do you expect any rehabilitation when you simultaneously were also claiming you were running *businesses* BEFORE injury too...
I have included these next sections in an effort to get you to focus on facts. Can you corroborate your position before and after injury with regards to these sections? Please pay particular attention to the differences between (b ) and (c ) as you may come under (b ) before your injury and then your conduct afterwards is where you came unstuck ie your efforts to push paragraph (c ) to fit your activity ... whilst ignoring implications of correlated sections such as Section 56. Husband or wife employed by or rendering services to spouse.
I do not mean to suggest that your spouse who was directly involved with any or all of the businesses during your ORAC days, did not comply with their duties and obligations regarding their return of income to the Commissioner of Inland Revenue during those years Alan. The point I am making is that all of these factors are being addressed within the legislation.
There is also this Section with specific factors identified in the legislation which may have applied in your case Alan,
2. Interpretation "Self-employed person"
(a ) Means a person (other than a person to whom paragraph (c ) of this definition applies) who, otherwise than as an employee and whether alone or together with another person or other persons, carries on a business in New Zealand (whether or not that business is also carried on outside New Zealand); and
(b ) Includes a person (other than a person to whom paragraph (c ) of this definition applies) who, having a vested beneficial share or interest in income arising from a business carried on in New Zealand (whether or not. that business is also carried on outside New Zealand), applies his personal exertions, otherwise than as an employee, in the carrying on of that business in New Zealand, notwithstanding that the business may be carried on by or subject to the control of an administrator or a trustee or any other person acting in a representative or fiduciary capacity, and notwithstanding that he himself may be such an administrator, trustee, or other person; but
(c ) Does not include a person who carries on a business merely as an administrator or trustee or in any other representative or fiduciary capacity, and who does not apply his personal exertions in the carrying on of that business otherwise than in his capacity as administrator or trustee or in any such other representative or fiduciary capacity: Provided that, in relation to the giving of notices under this Act to a self-employed person, references to a self-employed person include the administrator of the self-employed person and the assignee within the meaning of the Insolvency Act 1967 of the estate of the self-employed person; and (d) Has also the extended meaning assigned to it under section 69 of this Act:
Also please pay particular attention to this section too Alan
( 1) Where a person provides services for a company in which he is a shareholder (whether or not he is also a director of the company), the Corporation may determine
(b ) If he is a director of the company, how much of the amount that he receives from the company represents reasonable remuneration for his services as a director, and shall be deemed to be directors' fees for the purposes of this Act:
(c ) That the balance of the amount that he receives from the company shall be deemed to be a dividend for the purposes of this Act.
(2) Any determination made by the Corporation under this section shall be binding on the company and person