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Section 60 under 1982 Act issues to help personal story from a member AT

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Posted 22 June 2017 - 07:16 PM

Alan Thomas

For any readers who may not have even been born at the time Alan is referencing on the forum; the following link will take you to the Section 60 legislation being discussed here by Alan.

My apologies in advance for posting the complete versions of the Sections taken from this link under the 1982 Act which I have reposted below, however I have left them until the end and minimised the font to reduce any download resources etc The reason for my post-action is because many *words* may be argued ...

My concern is that Alan still appears greatly confused about some of the Permanent Incapacity Assessment Processes that were being used over 25 years ago. These processes have now been updated and there are Independence Allowance and upgraded or different evaluation tools utilised by the Assessing Experts etc
Unfortunately, I consider that Alan is severely mixing up many different sections within the 1982 legislation again.  Worse is the fact that some issues are being cherrypicked where Alan happily takes with one hand BUT rejects with the other hand. This demonstrates to me that there is awareness of the processes involved.

The situation in a nutshell as I have seen it per stories from Alan, however please remember that Alan may correct any errors with word usage &or clarify further facts if he wishes ...

Section 60 Pension - Assessment of permanent incapacity for Alan
  • NO decision ever read by me during past 15 years in this forum.

  • I do appreciate that any purported decision could be buried in some obsolete DRSL document or transcript. However DRSL is a first tier tribunal and their decisions are superceded by Higher Courts. 

  • Within the NZLII cases there is a reference to a DRSL document being severely misinterpreted by Alan ie a surgery funding approval only


Section 78. Compensation for non-economic loss related to permanent loss or impairment of bodily function for Alan
  • Alan rejected this offer. 

  • Loads of palaver concerning his arguments with actual impairment rating offered by ACC which was insufficient to meet thresholds at the time VERSUS some nonspecified quantum which may relate to a small bodily aspect.

  • IMHO this Sec 78 Grant would be a necessary step for any Sec 60 Pension determination.

  • The majority of kiwi claimants at the time likely accepted this payout from ACC.

  • I am not aware of any stories about kiwis insisting on miracle or ongoing operations to avoid such a decision being made back then
.


79. Compensation for other non-economic loss for Alan
  • Alan accepted this compensation grant. Original offer was minor, but Alan reviewed to get maximum grant of $K10 awarded.

  • I consider the take and reject behaviour with this section shows understanding of process and an erratic involvement to suit different ideas which escalated dispute & confusion ie Alan should have either accepted BOTH offers or refused BOTH offers basically imho


At this time, I believe that there are likely very few Kiwi claimants with a Section 60 pension currently being paid. There are likely different reasons for this. However I do not have exact numbers of people or statistics for this payment; and I have never seen any associated FYI.org information either...

One difficulty that I have never been able to discuss would relate to the *crystal ball gazing* element of such a pension. ie how would one determine potential future earnings when medicine & technology is evolving so rapidly etc

Another difficulty that I can see, is that for severely injured claimants who were able to obtain this pension; it is possible that due to the monetary amounts involved, they are likely to require social security topups ie WINZ benefits too.


Section 60 

For example I see that Section 60 discusses the 

(b ) Whether that permanent incapacity has resulted in a permanent loss or diminution of his capacity to earn; and (c ) The percentage which that permanent loss or diminution (if any) bears to permanent total loss of his capacity to earn

I do not consider that this Section would apply to Alan. Different reasons now.
One factor we have not yet discussed, or been deliberately unable to discuss, would relate to the fact that Alan may still be able to garner full time earnings under his occupations and skills related to Section 55. Working shareholders of companies

As best as I can tell from the storytelling is that while Alan may have accepted his weekly earnings compensation under Section 59 was less than $400 per week [pre-hernia injury] .... it appears that he expected to be rehabilitated or restored to a much much higher income level perhaps?

My difficulty is that if such claims of high income earnings were never validated 20-30 years ago by any official documentation ... then how is this different from other ACC claimants making such claims and then seeking various entitlements without regard to corroboration or cost etc

I am not sure if I am explaining this correctly, but I would see very little difference with any claimant deciding they wished to be funded in high cost educational systems OR as in Alans case it seems, numerous expensive operations where none of them might necessarily return him to his purported pre-occupational status etc

I mention this as in the Section 60 the word *retraining* is mentioned alongside *rehabilitation* but both of these concepts are often abstract or nonspecific and of course the huge difficulty arises if a claimant may have *multiple injuries* and multiple claims then how does ACC manage this etc etc

The best example I can give would be in regards to the UK system, whereby once a person has a specific injury claim settled, then any new claims for similar reinjury, would become fraught with liability amd personal responsibility issues imho.

I have never seen or understood how the old 1982 Act would accomodate such a layered approach eg using an example from ALan regarding a pianist, I can see how the claimant gets their Section 78 and 79 payment. If they were lucky enough then perhaps an additional section 60 pension for injury sustained if at the time they were highly paid at the time of accident. Please note the section 60 2 (a) also discusses opportunities which reasonably exist for the claimant and this would bring me to the pianist with injured fingers becoming a tutor perhaps? On top of this evaluation process I am not sure how the ACC system would manage if this pianist teacher with amputated fingers on one hand [hypothetically] then sustains additional injuries eg MVA with head injury or incapacitated to a wheelchair? So would this person then become entitled to multiple Section 60 pensions? If I correlate this process to Alans storytelling, then how would he explain the Section 60 process for all of his multiple injuries over the decades and so on :wacko:



60. Assessment of permanent incapacity-
( I) 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 (c ) 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 (c ) 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 Actand 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 (I) 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. ...
(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


I have included this next section because of the formula mainly .... and also because of the possibility that some Kiwis were granted entitlements under Section 61 instead of Section 60 ????

61. Increased compensation for full time earner in certain cases-(l) For the purposes of this section, an earner shall be deemed to be a full time worker only if(a) The Corporation is satisfied that he was, at the time of the accident, working in employment which would have required him to work in paid employment for an average of at least 35 hours a week, and that he would have continued in such employment if the accident had not occurred; or (b ) The Corporation, after having regard to the work history of the earner and to any special circumstances which may exist at or about the time of the accident, determines that the earner shall be regarded as a full time worker for the purposes of this section.
(b ) In relation to partial loss of earning capacity, calculated in accordance with the following formula:
A / B x C =
where(i) a is the amount of the weekly rate of his loss of earning capacity as determined under section 59 or section 60 of this Act; and
(ii) b is the amount of the weekly rate of his relevant earnings; and (iii) c is the minimum weekly rate of earnings related compensation that would be payable to him under paragraph (a) of this subsection for total loss of earning capacity.



These last two sections are the relevant ones which Alan treated differently back at the time where he took one payment but rejected the other ... they have also been replaced by the Independence Allowance.



78. Compensation for non-economic loss related to permanent loss or impairment of bodily function
(1) Where a person suffers personal injury by accident in respect of which he has cover and the injury involves the permanent loss or impairment of any bodily function (including the loss of any part of the body), the Corporation shall pay him compensation in a lump sum or lump sums assessed in accordance with this section, but not exceeding in the aggregate $17,000; and in assessing the extent of the permanent loss or impairment deduction shall be made in respect of any demonstrable, pre-existing, related permanent loss or impairment of that bodily function which can be established by the Corporation. (2) Where the injury involves a permanent loss or impairment specified in the First Schedule to this Act, the aggregate amount of the lump sum or lump sums to be paid under subsection (1) of this section in respect of that loss or impairment shall be the amount representing the appropriate percentage specified in that Schedule of $17,000. (3) Where the injury involves a permanent loss or impairment of the function of a part of the body to which the First Schedule to this Act relates but no lump sum is payable under subsection (2) of this section in respect of that loss or impairment, the Corporation shall determine, in the light of the medical and other evidence available to it and having regard to the severity of that loss or impairment and to the percentage specified in that Schedule, whether or not any compensation should be paid under subsection (1) of this section in respect of that loss or impairment; and, if it determines that any compensation should be so paid, it shall assess the percentage of $17,000 which it considers appropriate for that loss or impairment; and the aggregate amount of the lump sum or lump sums (if any) to be so paid shall be the amount representing that percentage of $17,000. (4) Where the Corporation is satisfied that, as a result of the injury, the person has suffered a permanent loss or impairment of a bodily function (including the loss of any part of the body), but no lump sum is payable under subsection (2) or subsection (3) of this section in respect of that loss or impairment, the Corporation shall assess and pay to him, having regard to the medical and other evidence available to it, such lump sum or lump sums (if any) as it considers appropriate for a permanent loss or impairment of that nature, but not exceeding $17,000 in the aggregate. (5) Where the person suffers by the same accident more than one of the permanent losses and impairments in respect of which compensation is payable under this section, he shall not be entitled to receive as compensation under this section in respect of those losses and impairments so suffered, more than $17,000 in the aggregate. (6) Notwithstanding the foregoing provisions of this section, no lump sum or lump sums shall be payable under this section if the assessment or the aggregate assessment of permanent loss and impairment is less than 5 percent of $17,000. (7) Where the Corporation has paid or has declined to pay any sum or sums to any person under this section in respect of any permanent loss or impairment of bodily function if the person thereafter suffers any loss or further loss or impairment of bodily function as a result of the original injury, the Corporation may make a further assessment of the amount payable in respect of the whole of the loss or impairment and, subject to subsection (6) of this section, may pay to the person such sum or further sum (if any) as becomes payable by reason of that further assessment but not exceeding, together with any payments previously made, $17,000 in the aggregate. (8) In assessing the compensation payable (whether in accordance with the said First Schedule or otherwise) in respect of the permanent loss of the sight of an eye or the permanent loss of a paired organ of the body (not including a paired limb) there shall be taken into account any payment by way of compensation which has previously been received by the person under this section and under section 119 of the Accident Compensation Act 1972 in respect of the permanent loss of the sight of the other eye or, as the case may be, the permanent loss of the other paired organ. (9) No payment shall be made under this section unless the injured person is living at the expiration of 28 days from the date of the accident, and payment shall not be made under this section after the death of the injured person. (10) The Corporation shall, before making any payment under this section, require a certificate by a registered medical practitioner of the permanent loss or impairment suffered by the injured person. Cf. 1972, No. 43, s. 119

79. Compensation for other non-economic loss
(1) Where a person suffers personal injury by accident in respect of which he has cover, the Corporation may pay him compensation in a lump sum of such amount (if any) as the Corporation thinks fit but not exceeding $10,000 in respect of
(a) The loss suffered by the person of amenities or capacity for enjoying life, including loss from disfigurement; and (b ) Pain and mental suffering, including nervous shock and neurosis: Provided that no such compensation shall be payable in respect of that loss, pain, or suffering unless, in the opinion of the Corporation, the loss, pain, or suffering (having regard to its nature, intensity, duration, and any other relevant circumstances) has been or is or may become of a sufficient degree to justify payment of compensation under this subsection: Provided also that any sum payable under this section shall be paid as soon as practicable after the medical condition of the person is in the opinion of the Corporation sufficiently stabilised to enable an assessment to be made for the purposes of this section, or forthwith after the expiration of 2 years from the date of the accident, whichever is the earlier.
(2) Where the personal injury so suffered is wholly or partly in respect of a kidney or lung or any other paired organ (not including a paired limb) to which the Governor-General has by Order in Council declared that this subsection shall apply, if the effect of the injury is specially serious by reason of a pre-existing loss or impairment of the other kidney or lung or the other such paired organ, that effect shall, for the purposes of subsection (3) of this section be an enhancement factor. Any such Order in Council may be made to come into force on the day on which it is made or on any earlier or later date. (3) Where compensation is payable to any person under this section in respect of the injury, if there is an enhancement factor the Corporation, having regard to the medical and other evidence available to it, may include in any such lump sum such additional amount as it considers appropriate on account of the enhancement factor.
(4) After the lump sum payable under this section has been assessed and paid, subject to Part IX of this Act, the amount payable under this section shall not thereafter be reviewed by the Corporation:
Provided that the Corporation may review the amount of the sum so payable at any time(a) In any case where a person suffers a head injury by accident in respect of which he has cover, and develops epilepsy after the lump sum payable under this section in respect of that injury has been assessed and paid: (b ) In such other cases as the Governor-General may by Order in Council prescribe; and any such Order in Council may be made to come into force on the day on which it is made or on any earlier or later date. (5) In assessing compensation under this section, the Corporation shall have regard to the injured person's knowledge and awareness of his injury and loss. (6) No payment shall be made under this section unless the injured person is living at the expiration of 28 days from the date of the accident, and payment shall not be made under this section after the death of the injured person. (7) No compensation other than that specified in this section and in section 78 of this Act shall be payable to any person under this Act in respect of non-economic loss. CL 1972, No. 43, s. 120

80. Compensation for pecuniary loss not related to earnings
-(1) Where a person suffers personal injury by accident in respect of which he has cover, or where a person dies as a result of personal injury so suffered, the Corporation, having regard to any other compensation payable and any rehabilitation assistance provided or to be provided, may, under this subsection, pay to him, or in the event of his death to his administrator, compensation of such amount (if any) as it thinks fit for actual and reasonable expenses and proved losses necessarily and directly resulting from the injury or death, not being(a) Any expense or loss in respect of damage to or diminution in value of property (whether real or personal, tangible or intangible, or movable or immovable) or any estate or interest in such property; or (b ) Any expense or loss incurred after the death of that person in respect of the administration of his estate; or (c ) Any expense or loss arising from damage in respect of which payment is excluded or limited under section 76 or section 77 of this Act; or (d) The loss of an opportunity to make a profit; or (e) Any loss arising from inability to perform a business contract; or (f) Any loss that has not for the time being actually occurred, whether or not the amount thereof is ascertainable before it occurs; or (g) Any expense or loss in respect of or towards payment of which compensation is otherwise payable under this Act whether or not any such compensation is actually paid; or (h) Any expense or loss which the Corporation considers is similar in nature to an expense or loss for which compensation is payable under any other provision of this Act, whether or not any compensation is actually paid under such other provision. (2) Where a person suffers personal injury by accident in respect of which he has cover, or where a person dies as a result of personal injury so suffered, the Corporation, having regard to any other compensation payable, may(a) Pay to any member of the household of which the injured or deceased person was a member on the date of the accident such weekly compensation as the Corporation thinks fit for any quantifiable10ss of service of a domestic or household nature which was previously provided on a regular basis and which is proved to have been suffered by the person to whom the payment is made as a result of the injury or death for such period as the Corporation thinks fit, not being longer than the period for which that member could reasonably have expected to receive the service: (b ) Pay to any person, or to the administrator of the person, such compensation as the Corporation thinks fit for any identifiable and reasonable expenses or losses incurred by the person in giving help to the injured person while he is suffering from incapacity resulting from the injury or in taking any necessary action following and consequential upon the death of the injured person. (3) Where a person suffers personal injury by accident in respect of which he has cover and the injury is of such a nature that he must have constant personal attention, the Corporation, having regard to any other compensation payable, may pay to that person, or if it thinks fit to the administrator of that person, such amounts as the Corporation from time to time thinks fit in respect of the necessary care of the person in any place of abode or institution.

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Posted 22 June 2017 - 07:49 PM

I have posted the following High COurt decision in full as it may come up in discussion. If writers could please refer to areas when used this would help me follow the threads of dialogue. There may also be a few errors possibly due to the OCR or Optical Character Reslution issues with scanning, however I do not have any access to the legal resources or a link for this Decision unfortunately...




KING v ACCIDENT COMPENSATION CORPORATION
————— [unreported] —————

HIGH COURT OF NEW ZEALAND, Auckland (M1738/92) 15 July 1993; 2 August 1993

BARKER J

G.A. Howley for plaintiff

L.J. Taylor and J.P. Ferguson for defendant

Richard Wood, Auckland, for plaintiff

Bell Gully Buddle Weir, Wellington, for defendant

JUDGMENT OF BARKER J

BARKER J

INTRODUCTION:

On 29 November 1987, the plaintiff sustained severe injuries in a road accident when his motor cycle was struck by another vehicle. He thus became entitled to the benefits offered by the accident compensation system. At the time, he had been operating his own business — selling, repairing and installing mufflers and exhaust systems.

The plaintiff experienced difficulty with the Accident Compensation Corporation (“the Corporation”) over the assessment of his entitlement to earnings related compensation (“ERC”) pursuant to S.59 of the Accident Compensation Act 1982 (“the 1982 Act”). After three separate assessments by the Corporation and a review hearing, the Accident Compensation Appeal Authority upheld the plaintiff’s contentions. Even after the Appeal Authority had fixed the level of ERC, a mistake by officers of the Corporation resulted in an incorrectly calculated payment being made to the plaintiff.

These matters are not strictly relevant to the present case but they do contribute to the sense of frustration with which the plaintiff views the Corporation. Subsequent events to be narrated will show how his initial discontent was justifiably exacerbated.


FACTS PERTAINING TO THE APPLICATION FOR JUDICIAL REVIEW:
Aside from his entitlement to ERC, the plaintiff was potentially a candidate for compensation for permanent incapacity pursuant to S.60 of the Act. The Corporation was obliged by this provision to make an assessment only if certain prerequisites were met, which included a requirement that “all practicable steps” needed to have been taken towards an earner’s “retraining and rehabilitation.” It is the Corporation’s action, or inaction, in relation to the assessment of this type of compensation which has prompted the present judicial review application.

After his accident, the plaintiff attempted to work in his business in a supervisory role which was all his medical condition would allow. The question of rehabilitation was not actively addressed by the Corporation at that point in time. The plaintiff has always shown a commendable willingness to work, so far as his health permitted. Giving no hint of malingering, one might have thought him an ideal subject for early attempts by the Corporation to achieve such rehabilitation as was feasible.

At the Corporation’s request, the plaintiff was examined on 30 August 1988 by an orthopaedic surgeon, Mr Mills, who considered that as a result of the accident, the plaintiff had suffered a significant residual disability, 65% of the loss of function of the right leg. The Corporation also sent the plaintiff to be examined by a urologist because of certain genito-urinary problems arising from the accident.

In February 1989, on the basis of the specialists’ reports, the Corporation awarded the plaintiff lump-sum payments as follows: $8,257.50 for non-economic loss and impairment of bodily function (S.78 of the 1982 Act) and $10,000 (the maximum) for pain and suffering (S.79 of the 1982 Act). Like the pension under S.60 of the 1982 Act for long-term loss of earning capacity — with which this case is concerned — lump-sum payments are not included in the new regime for accident compensation introduced by the Accident Rehabilitation and Compensation Insurance Act 1992 (“the 1992 Act”).

During 1989 and the first half of 1990, the plaintiff was engaged in his struggle to have his ERC correctly assessed. Eventually, his appeal was heard on 19 July 1990 and determined in his favour on 2 August 1990.

On 16 July 1990, Mr P.C.N. Wong, an orthopaedic surgeon, reported to the Corporation on his examination of the plaintiff. Mr Wong considered that the plaintiff’s clinical status was stable and that his right lower limb disability was 40% of the whole leg or 30% of the total. But because of the plaintiff’s other injuries, he recommended an assessment at 45% total disability. He ended his report thus —

With such gross restriction, obviously the claimant is being pushed into an area of lighter employment and no doubt he will suffer a financial loss as a consequence and therefore the claimant should be further considered for entitlements and benefits under S.60 of the Accident Compensation Act.

The plaintiff telephoned the North Shore Manager of the Corporation, Mr Orange, on 14 August 1990 mentioning that the Appeal Authority had allowed his appeal and asking for an assessment of permanent loss of earning capacity. The Manager directed a note to Mrs Steedman, who is a “client officer” that “when ERC issue is finalised, please consider Mr King’s entitlement under S.60”.

On 10 December 1990, a conversation between the plaintiff’s wife and a rehabilitation advisor from the Corporation took place. The plaintiff was said to be receptive to seeing anyone from “Rehab” after Christmas. The plaintiff’s family doctor wrote to the Corporation on 19 January 1991 pointing out that his patient was very stressed from the prolonged dealings with the Corporation and asking that his claim be expedited. However, on 13 February 1991, another officer of the Corporation discussed the options with the plaintiff and suggested that, rather than pursuing a S.60 application, he should give himself 6-12 months off work, sell his business and re-evaluate his options.

The Corporation arranged for the plaintiff to receive physiotherapy during 1991. It reduced his ERC on 12 November 1991. He complained about this to Mr Orange on 27 November 1991; Mr Orange ordered the convening of a “case conference” which did not eventuate because the plaintiff acknowledged that the reduction was legally possible. A S.60 assessment was addressed by a Corporation doctor and a rehabilitation officer in June 1991. They both acknowledged that the plaintiff had a permanent impairment, but the rehabilitation question was deferred to enable the plaintiff to consider his options after he had sold his business, which occurred sometime in 1991.

On 5 December 1991, the Corporation — apparently not content to accept Mr Wong’s assessment of permanent disability — sent the plaintiff to Mr O.R. Nicholson, another orthopaedic surgeon. His report confirmed Mr Wong’s assessment and concluded with these words —

Assessment under S.60:

As I have already indicated, I regard Mr King as genuine in his complaints. It seems that he made efforts to return to his previous occupation but was unable to sustain his business as he had to employ someone else to do his job.

I would regard him as totally unfit to return to his ordinary occupation as an exhaust fitter.

It is difficult to envisage any job to which he could return. In view of his farming background he has considered obtaining a small property and farming dry stock.

He informs me that had he continued to be successful in his business he would have been able to earn about $50,000 a year and at his age some consideration of his earnings potential may be indicated in assessing his entitlement under this Section.

Notwithstanding this very firm indication from an experienced orthopaedic surgeon, the Corporation did nothing immediately about the plaintiff’s S.60 assessment. On 16 March 1992, after the plaintiff’s general practitioner had written again to the Corporation, the plaintiff received the following letter from Mrs Steedman —

I write in regard to your doctor’s letter of 17/2/92. Your file has been passed to me to look at possibly assessing Section 60.

Unfortunately due to current work loads and staffing levels, and due to the extensive training we are undertaking for the new legislation, I will be unable to look at this assessment in the near future.

I will keep you informed of progress and developments as they happen, but please ensure you forward medical certificates as in the past.

This letter was written despite the fact the doctor had sought urgency for the plaintiff’s claim as he felt “ACC is contributing to his general poor health.”

The plaintiff’s counsel wrote to the General Manager (Operations) of the Corporation in Wellington on 25 March 1992. Counsel referred to Mr Wong’s assessment which had been confirmed by Mr Nicholson and to Mrs Steedman’s letter; he requested the General Manager to “do what you can to persuade your staff to get on with the assessment.”

The General Manager replied on 7 April 1992 in these terms —

Thank you for your letter dated 25 March 1992 concerning Mr King’s assessment under Section 60 of the Accident Compensation Act 1982.

Assessments of permanent incapacity under this Section are not considered until the injured person’s medical condition has stabilised and all practicable steps have been taken towards the retraining and rehabilitation of that person.

My Takapuna Branch Manager advises me that your client was severely injured and that his medical condition has stabilised. However, it appears that his rehabilitation may not yet be complete. I am advised that when Mr King sold his business last year his rehabilitation was put on hold in order for him to take time out to re-evaluate his options. It would now seem timely for Mr King to again meet with his Rehabilitation Co-ordinator to discuss his situation. I have asked my Branch Manager at Takapuna to arrange this appointment.

Please accept my apologies for the undue anxiety that Mrs Steedman’s letter of the 16 March 1992 has caused your client. I am assured that this was never the intention. The letter was designed to let your client know that he had not been forgotten and the reason why his assessment would be delayed.

I have now instructed my Takapuna Branch Manager, Mr John Orange, to ensure that an assessment of your client’s entitlement under Section 60 is instigated as soon as it has been established whether further rehabilitation is to be undertaken.

I trust this clarifies the situation for you. Please contact Mr Orange if you have any further queries.

The Takapuna Manager, on 7 April 1992, presumably in response to Mr Hutton’s letter, wrote a memo for Mrs Sandra Dudek whose designation is “Senior Client Officer” saying —

Please ask Rehab to get back in touch with this man — ASAP. We need to know what further rehabilitative initiatives are proposed so that we can determine whether or not it is appropriate to proceed with an assessment under Section 60.

The rehabilitation co-ordinator, Ms Hilary Taylor, on 30 April 1992, instructed a Mr Brawn-Douglas, a vocational counsellor and educational psychologist, to interview the plaintiff, re-examine the rehabilitation programme and give him some vocational guidance. This step followed the plaintiff’s doctor’s further letter to the Corporation on 21 April 1992 saying:

Mr King does not appear to have any rehabilitation programme organised. I would think he could be retrained. Please give it some thought.

Mr Brawn-Douglas reported on 8 May 1991 as follows —

Further to our telephone conversation today, I have had a detailed discussion with Alistair and his wife Julie, and have reached the conclusion that vocational counselling would be inappropriate. The reason for this is that I believe Alistair’s capacity for any sustained effort is simply too limited due to the residual pain and physical disability he suffers. In support of this conclusion I draw your attention to Dr Nicholson’s report (Dec 1991) who stated that he thought Alistair’s report of pain was genuine, and that he now had a some (sic) total disability of pelvis, right knee, right ankle, and foot, of 45%.

In addition to vocational counselling in your letter you asked me to consider working with “any residual frustrations over his predicament and the way his claim has been handled in the past”. In my opinion, to date Alistair has actually made a healthy personal adjustment to the disabilities he now suffers as a result of his accident. However as time passes there may be further need for counselling in this area.

Further I think the frustration he feels over the handling of his case by ACC is, unfortunately, quite justified — that is if I put my self in the position of having experienced his history of dealings with the Corporation, I too would feel enormous frustration.


RECOMMENDATION
Under Section 60 I believe Alistair is unfit for ANY gainful occupation. Further I believe that ACC recognition of this as quickly as possible is the most effective way of addressing his “residual frustrations” with the Corporation.

The plaintiff himself wrote to Ms Taylor, the Rehabilitation Controller, on 11 May 1992 requesting the Corporation to “reassess” him under Section 60 and asking for prompt attention and a reply. Ms Taylor passed the letter on to Mrs Dudek because “it is a claims matter requiring Sandra’s consideration”.

On 28 May 1992, Ms Taylor wrote a memorandum for the Branch Manager, the senior rehabilitation co-ordinator and Mrs Dudek. In it, she set out relevant history, opining that the earlier problems with the assessment of ERC plus significant residual frustratio “seems to have driven them (sic) to seek a Section 60 assessment”. She had spoken with the plaintiff’s doctor who considered Mr Brawn-Douglas’ report “soft” and that the plaintiff still had a vocational future. She queried payment of Mr Brawn-Douglas’ bill despite the fact that the Corporation had instructed him. (I should have thought it obvious that unhappiness with an expert’s findings is no reason for refusing to pay the expert’s account provided it were reasonable in amount). She did not concede that the plaintiff was unemployable for “evermore” and believed that a rehabilitation programme had not been addressed because of circumstances due to the problem with the client’s frustration and resentment over the way his claim had been handled. She recommended “that we let the question of his programme rest until the new Act is in place”.

The Branch Manager, Mr Orange, responded to Ms Taylor’s memorandum on 19 June 1992; he declined to pay Mr Brawn-Douglas’ fee because Mr Brawn-Douglas had not given the plaintiff “vocational guidance counselling”. Mr Brawn-Douglas was criticised for reporting on the plaintiff’s work capacity.

The Branch Manager seems to have overlooked that Mr Brawn-Douglas’ report was to the same effect as Mr Nicholson’s. Both were professionals from different disciplines, able to look on the plaintiff’s problems objectively. As a senior and experienced orthopaedic surgeon, Mr Nicholson must have seen thousands of injured people; he must have been well-qualified to express an opinion on the plaintiff’s ability to work. Nevertheless, the Branch Manager shared Ms Taylor’s view that the plaintiff was not incapable of any kind of work. He directed ERC to continue on the understanding that the plaintiff worked with Ms Taylor “towards the writing and implementation of a rehabilitation programme”.

The plaintiff himself telephoned Mrs Dudek on 25 May 1992 to query his assessment and was told —

I advised the injured person that this would not be done as, come the 1st July, there would be no such thing as a “Permanent Pension”. I explained that ongoing entitlement would be based on 6 monthly work capacity assessments.

I explained that this is the case for everyone of Sec. 60’s whether they’ve been in receipt of Sec 60 for 10 yrs or 10 months.

This discussion was referred to in subsequent correspondence dated 10 June 1992 in the following terms —

I am writing in regard to your recent queries about your entitlement under Section 60 of the Accident Compensation Act 1982.

As per your conversation with Mrs Sandra Dudek I am writing to confirm that as of 1 July 1992 there will no longer be the provision for such an assessment.

Ongoing entitlement to long term Compensation will be based on regular six monthly work capacity assessments, which all claimants will be expected to attend.

Claimants who are currently receiving compensation under Section 60 will no longer be on a “Permanent Pension” and will be expected to attend those assessments.

I trust this clarify’s (sic) the matter for you.

On 24 June 1992, the plaintiff wrote again to the Corporation requesting a review of the decision not to reassess him under S.60. He received on 30 June 1992 the following reply —

Thank you for your letter dated 24 June 1992 regarding your request to be assessed under Section 60 of our 1982 Act.

Unfortunately, we are unable to do this as explained in our letter of 10 June 1992, as there is no longer any provision for a “Permanent Pension”, and ongoing entitlement will be based on regular six monthly work capacity assessments which you will be required to attend.

Please find enclosed a booklet explaining the changes to the ACC Scheme as of 1 July 1992, and if you have any queries, please do not hesitate to contact this office.

The 1992 Act was enacted on 1 April 1992. Apart from certain provisions which came into force immediately, most of its sections came into force on 1 July 1992, including those with which this judgment is concerned.

On 6 July 1992, the plaintiff sought clarification of the Corporation’s letter of 30 June 1992 and asked whether the Corporation was refusing to review its decision. The Branch Manager, Mr Orange, replied on 7 July 1992 confirming the earlier information and concluding:

Unfortunately this is a government policy decision and is no reviewable.

On 28 July 1992, the plaintiff was advised by Ms Taylor that no referrals could be made to the Rehabilitation Institute of Auckland because “the Institute is presently negotiating with ACC over fees”. Ms Taylor on 31 August 1992 noted in the memo to the District Rehabilitation Adviser a lack of a resource offering an appropriate work capacity assessment for the plaintiff. She noted that the plaintiff had been turned away from the McKenzie Institute on account of his being a “bad risk” in terms of a return to work.

Little progress was made in the remainder of 1992 towards the plaintiff’s rehabilitation. The Corporation has taken no steps in this regard pending resolution of this proceeding. Its senior Rehabilitation Co-ordinator told the plaintiff’s doctor in a letter dated 16 April 1993 —

You will be aware of Mr King’s request to be awarded a permanent pension under S.60 of the Accident Compensation Corporation Act 1982 (sic). The Corporation declined to consider this option as, along with you, we felt that a permanent pension was an inappropriate option for this man. However, Mr King has taken this to a Judicial Review, in the absence of a formal decision from the Corporation.

This has seriously compromised the relationship between Mr King and ACC, and it has been impossible to subsequently establish a rehabilitation programme with him.

Further rehabilitation assistance will be dependant (sic) on the outcome of the Judicial Review.

This letter followed a memo dated 16 September 1992 from a Ms Harger, a District Rehabilitation Advisor who considered the problem in designing a suitable rehabilitation plan for the plaintiff to be “multi-faceted”. Her suggestions were really in the nature of a plan to set up a plan. This memo was in turn generated by a memo from Ms Taylor to Ms Harger dated 31 August 1992 who opined that it had been decided by Mr Orange in May 1992 “that this man is capable of undertaking a vocational rehabilitation programme”.


THE PLAINTIFF’S CLAIM:
It was against this saga of frustration, delay and error, that, on 27 October 1992, the plaintiff commenced proceedings for judicial review of the Corporation’s decision or, strictly speaking, its refusal to decide that the plaintiff was entitled to have his application for an assessment under S.60 properly considered. Some of the orders sought in the statement of claim are not appropriately expressed in administrative law terms. However, no technical point was taken by the defendant since the issues are quite clear-cut. Should the plaintiff succeed, declarations will be appropriate relief.


THE CORPORATION’S SUBMISSIONS:

Counsel for the Corporation submitted —

(1) Even if the applicant is able to establish that the Corporation wrongfully failed to make an assessment under S.60, the relief sought is inapplicable because of the effect of the transitional provisions of the Act — the Corporation is now unable lawfully to make an assessment under S.60. This interpretation of the transitional provisions is seen by the Corporation as being reinforced by Ss. 135(1A) and (3) of the 1992 Act as inserted by the Accident Rehabilitation and Compensation Insurance Amendment 1993 (No 2) Act (“the 1993 Act”). Counsel further submitted that any prejudice suffered by the plaintiff is insignificant, particularly given that he will still be entitled to his S.59 entitlement.

(2) If this interpretation is incorrect, and the position under the 1982 Act must be considered, the Corporation’s actions do not constitute the exercise of a “statutory power of decision” necessary to found an action for judicial review. It is claimed that letters sent to the applicant were merely the giving of advice, or preliminary expressions of opinion, the Corporation’s officers acting in an administrative or functional capacity.

(3) No grounds exist which entitle the applicant to the remedies sought, as “all practicable steps” in terms of S.60 of the 1982 Act have not been taken, and the Corporation became unable to assess the applicant after the enactment of the new Act. Although progress was slow, and the coordination of a programme was proving difficult, the Corporation’s decision was a reasonable one and was made with no bad faith on its part. The forthcoming repeal of S.60 was not the rationale behind its actions.

(4) If it is established that the respondent has taken into account an irrelevant consideration, or has acted unreasonably, the Court does not have the jurisdiction to refer the matter back for redetermination, if the transitional provisions are interpreted as the Corporation suggests.

THE ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION ACT 1992 AND THE EFFECT OF THE TRANSITIONAL PROVISIONS:

The 1992 Act contains transitional provisions which now need to be quoted —

135. Relationship of this Act and former Acts —

(1) Any person who has had a claim accepted for personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 suffered before the 1st day of July 1992 shall be deemed to have suffered personal injury that is covered by this Act.

(2) Nothing in subsection (1) of this section shall apply if it is subsequently determined that the person had not suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982.

(3) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 before the 1st day of July 1992 and who has lodged a claim with the Corporation in respect of that personal injury by accident before the 1st day of October 1992, shall have the acceptability of the claim determined under the Accident Compensation Act 1982 as if it had not been repealed.

(4) Where subsection (3) of this section applies, the continued entitlement of the person to rehabilitation, compensation, grants, and allowances shall be determined under those Acts, as appropriate, but subject to this Part of this Act.

(5) Any person who has suffered personal injury by accident within the meaning of the Accident Compensation Act 1972 or the Accident Compensation Act 1982 that is covered by either of those Acts, and who has not lodged a claim with the Corporation in respect of that personal injury by accident before the 1st day of October 1992, shall have cover under this Act only if that personal injury by accident is also personal injury that is covered by this Act.

138. Weekly Compensation —

(1) Where any person is, immediately before the 1st day of July 1992, in receipt of or would have been entitled to be in receipt of compensation calculated under any of the provisions of sections 113, 114, 116, 117 and 118 of the Accident Compensation Act 1972 or of sections 59, 60, 61, 62, 63, 64 and 88 of the Accident Compensation Act 1982, that compensation shall continue to be payable or be paid as if it had been calculated under this Act; and the personal injury by accident suffered by that person shall be deemed to be personal injury within the meaning of this Act.

1A. Nothing in subsection (1) of this section shall apply in respect of any assessment of compensation under S.114 of the Accident Compensation Act 1972 or S.60 of the Accident Compensation Act 1982 unless the assessment had been completed before the 1st day of October 1992 or a decision in respect of any such assessment was subject to an application for review under Part IX of the Accident Compensation Act 1982 that was lodged before the 1st day of October 1992.

(3) Where subsection (1) of this section does not apply because a person was not entitled, immediately before the 1st day of July 1992, to be in receipt of compensation to which that subsection applies, the entitlement of that person to compensation for loss of earnings or loss of potential earning capacity in respect of any period after that date shall be determined under this Act.

S.135(3) of the 1992 Act applies to claims lodged before 1 October 1992 (as was the plaintiff’s claim for a S.60 assessment). Despite the contentions of the respondent to the contrary, it is my view that the word “claim” must apply to the whole range of claims possible under the 1982 Act. The words “acceptability of the claim” are wide and there is no warrant for restricting their meaning to the initial decision as to whether a claimant has or has not suffered personal injury by accident and thereby becomes qualified to make one or more of a variety of claims available under the Act.

I consider that S.135(3), given a full, large and liberal interpretation is sufficiently broad to include an injured person’s entitlement to have a claim for a S.60 assessment considered. This accords with S.138(1) of the 1992 Act which allows compensation under the 1982 Act to which a person would have been entitled, to be paid as if calculated under that Act provided an assessment has been completed before 1 October 1992 or, as in the present case, an application for review under Part IX of the 1982 Act was lodged prior to 1 October 1992 (S.138(1A)).

The decision that I have reached is in accord with the Appeal Authority decision in Tocher v Accident Compensation Corporation (16 June 1993). In that case, the Corporation had elected not to rehabilitate and retrain the appellant; the Corporation pleaded non-compliance with the statutory requirements for making a S.60 assessment.

The Appeal Authority rejected an equally restrictive interpretation proposed by the Corporation that S.135(3) of the 1992 Act only applies to claims lodged between 1 July and 30 September 1992. He considered that the appellant was entitled to have her claim for a S.60 assessment of permanent incapacity considered in a measured and responsible manner at the time it was first made in June 1990. He concluded that the Corporation had never given any serious consideration to an award, preferring instead to rely on review and appeal procedures to justify its apparently unreasonable refusal to make one. Mr P.J. Cartwright, the Appeal Authority, went on to say —

Despite the fact that an award under S.60 is a permanent commitment which may involve a large sum of money, the Corporation has a duty under S.60 to assess permanent earnings related compensation for people who do not recover and who have a loss of earning capacity.

I am glad I have been able to come to a similar decision in this case because acceptance of the Corporation’s submissions would have resulted in an injustice caused by the Corporation’s 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.

An alternative approach which leads to a similar result is to regard the plaintiff’s letters of 24 June 1992 and 6 July 1992 as applications for a review of the Corporation’s decision under Part IX of the 1982 Act. Such an approach accepts that the Corporation had effectively decided to make a nil award under S.60 because of its conclusion that one of the preconditions did not apply. The Corporation’s internal memoranda indicates its fairly entrenched view that the plaintiff had not qualified for S.60 compensation despite indications to the contrary from outside professionals which it had commissioned.

Under the 1982 Act the plaintiff was entitled to challenge that decision by way of review. I note that S.152 of the 1992 Act (as amended by S.47 of the 1993 Act) preserves Part IX of the 1982 Act relating to reviews and appeals. It provides —

Where any decision has been made under the Accident Compensation Act 1972 or the Accident Compensation Act 1982, or under either of those Acts as applied by this Part of this Act, Part IX of the Accident Compensation Act 1982 shall continue in force in respect of that decision, as if that Part and those Acts had not been repealed.

Under this approach, the Corporation can be ordered to take the necessary steps to enable its decision in relation to the plaintiff to be reviewed by a Review Officer under Part IX of the 1982 Act, which will continue to apply in respect of applications for reviews dated prior to I October 1992.


ELIGIBILITY PURSUANT TO 8.60:
S.60 of the 1982 Act provides —

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

(c ) 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.

The prerequisites for making an assessment by the Corporation under S.60 are set out in Dean v Accident Compensation Corporation [1981] 1 NZLR 750, 753-4 by the Court of Appeal. That case concerned S 114 of the 1972 Act, which was the predecessor of the 1982 Act. Section 114 itself is similar in wording to S.60 of the 1982 Act. Woodhouse P, delivering the judgment of the Court, stated as follows —

The opening words which govern the whole section are designed to bring within its purview only some of those who have suffered an earlier injury by accident. The operative words are “where a person ... does not completely recover from his incapacity due to the accident”. Only when that situation has arisen and the individual concerned has been taken into the limited class is it possible for the Corporation to consider whether his medical condition is stabilised and the conditions as to retraining and rehabilitation have been met. If affirmative answers are given to those matters then and only then is the Corporation given jurisdiction to go on to “review his case and make an assessment in writing of” compensation under section 114 ...

...

And because in the very nature of things that kind of prognosis must be delayed, just as the condition itself may never arise, a legislative decision has been taken to delay the vesting of any rights under section 114 including the process of assessment for the purpose of making a nil award. In other words, such rights do not accrue, as perhaps some other compensation rights do accrue, at the time of an initial injury by accident.

In Dean’s case, the appellant’s medical condition had not stabilised until some time after his accident had elapsed. The question before the Court of Appeal was whether his permanent compensation fell to be assessed under the predecessor of S.60 in its statutory form at the date of his accident or in its statutory form at the date of the assessment. The Court of Appeal rejected the Corporation’s argument that the former applied, on the basis that the right of assessment did not accrue until the preconditions in S.60 had been established.

In the present case, the Corporation acknowledged that the plaintiff would never completely recover from his incapacity and that his medical condition had stabilised. However, it has maintained all along that the third precondition to the making of a S.60 assessment had not been fulfilled; i.e. that “all practicable steps had not been taken towards his retraining and rehabilitation”. It is clear from the narrative that the Corporation deliberately refused to action the plaintiff’s request for a S.60 assessment, knowing that the legislation was about to be changed on 1 July 1992. (See for example, the 28 May 1992 memorandum from Ms Taylor (the Rehabilitation Co-ordinator) to Mr Orange that the matter “rest until the new Act is in place”.)

The argument for the Corporation is not cluttered with objective merit. It is saying in effect: “We deliberately delayed considering your application for a S.60 assessment until we knew that we no longer had the power to consider it.” It is hard to see how the Corporation can rely on non-fulfilment of the practical steps precondition.

The decision in Dean makes it plain that the Corporation has the jurisdiction to make an assessment for permanent disability compensation only when the statutory prerequisites are considered to have been met. The provision is inherently subjective, the point at which “all practicable steps have been taken” is solely for the determination of the Corporation.

However, the subjective nature of this provision does not mean that the Corporation is under no duty to act fairly and reasonably. Nor does it mean that the Corporation may freely plead non-compliance with the provision as a justification or an excuse for its own failure to act expeditiously and to proceed on to an assessment.

The latter point was also made abundantly plain in Tocher v Accident Compensation Corporation (supra). There the Corporation seems to have quickly formed the view that rehabilitation was but a forlorn hope, given the gravity of the plaintiff’s incapacity. However, it did not make an assessment of permanent incapacity under S.60, “because all practicable steps” had not been taken.

The Authority considered that, having elected not to rehabilitate or retrain the appellant, the Corporation was estopped from pleading non-compliance with the “all practicable steps” requirement, on the basis of equity or good conscience —

... absolutely no rehabilitation or retraining of the appellant had been undertaken by the Corporation, apparently because it was assumed that she was so severely injured that she would never work again. That the Corporation should then plead its failure or refusal to train and rehabilitate the appellant as being a bar to the making of a S.60 assessment is, in my view, a non sequitur. (Supra, at 7).

It is acknowledged that rehabilitation is a “primary function of the Corporation”. (Accident Compensation Corporation v Broadbelt [1990] 3 NZLR 169, (CA)). The Corporation must give consideration to what is a “practicable” step in any instance, and what is not. It is not able to delay the assessment process indefinitely to enable it to pursue impracticable rehabilitation and retraining options. Nor was it reasonable for the Corporation to have set its mind against considering the plaintiff’s S.60 application because it knew that S.60 claims were to be abolished in the new Act.

A favourable assessment under S.60 of the 1982 Act would be of benefit to the plaintiff. If he is entitled to an assessment under S.60, then under S.141(1) of the 1992 Act, such payments normally will continue indefinitely. Although there is a provision for reassessment of certain payments under S.141(2) of the 1992 Act, the seriousness of his injury would render him unlikely to come within that subsection.

Counsel for the Corporation submitted that there was little prejudice to the plaintiff in not having been assessed under S.60 because he would be entitled to continue to receive payments under S.59 whilst unable to work. Under S.139 of the 1992 Act, he is able to receive ERC until such time as ERC is either ceased pursuant to S.139 of the 1992 Act or abated pursuant to S.140 of the 1992 Act. It will only cease under S.139 if the plaintiff was found to have a capacity for work of 85% or more. Despite counsel’s attempts to show that the plaintiff will be no worse off without a S.60 assessment, I consider that the plaintiff’s right to a S.60 assessment was a tangible right with some benefit to him.

I note that a similar point was raised in Tocher v Accident Compensation Corporation (supra). At page 12 of that decision, the learned Appeal Authority stated —

In my view the appellant has been seriously disadvantaged by the delays caused by the Corporation in not making an assessment under S.60. I agree with (counsel for the applicant), if a S.60 entitlement had been established prior to 1 July 1992, then by virtue of Ss 138, 139, and 141(1) of the 1992 Act the appellant would not be subjected to the provisions of Ss.49 and 51 of the 1992 Act. Other benefits of a S.60 award, once made, are that it shall not be reduced by any subsequent increase in a claimant’s earning capacity (S.50(5)) ...

STATUTORY POWER OF DECISION:
I have no doubt that in this present case there has been an exercise (or the failure to exercise) a statutory power of decision by the Corporation which would normally be amenable to judicial review. On the foregoing narrative, there was clearly a refusal by the Corporation to exercise a statutory power; i.e. to make an assessment of the plaintiff’s entitlement under S.60. This was either a refusal to consider that “all practical steps had been taken etc” and thus make the plaintiff eligible for assessment under S.60 which in the circumstances translates simply into a refusal to make an assessment.

Unless there was a right to a review of the Corporation’s decision, it could temporise forever over this one fairly subjective precondition. On a review, the Review Officer, on an appeal, the Appeal Authority, could find that the precondition had or had not been satisfied. In the former case, an assessment under S.60 could be declined; on the latter, an assessment could be made.

The plaintiff could argue that the evidence from the orthopaedic specialists and Mr Brawn-Douglas indicated that there was nothing more practically speaking that could be done towards his rehabilitation. The Corporation could have argued to the contrary but this plaintiff was never given a chance to have the matter debated on the merits.

The various authorities cited by counsel for the Corporation concerning the reviewability of the powers of statutory corporations have no application in this present case which is a bad example of a bureaucracy misinterpreting its statutory duty to the detriment of a citizen’s rights.


REMEDIES:
Prima facie, the applicant is entitled to judicial review. There are no discretionary considerations to be taken into account against him; he has been long-suffering throughout his lengthy sojourn with bureaucracy. For the reasons stated, I do not consider that the legislation prevents the Corporation’s decision being reviewed on normal administrative law principles. In making its decision, the Corporation took into account an improper consideration, namely, the fact that S.60 assessments were being abolished by a new Act not then in force. Had the Corporation been assiduous in discharging its duty to the plaintiff, it would have taken expeditious steps to ensure that his application for a S.60 assessment was considered, leaving him with his rights of review and appeal, should he be dissatisfied with its decision.

There will be an order under the Judicature Amendment Act 1972 requiring the Corporation to have the plaintiff’s application for assessment under S.60 considered by a Review Officer under Part IX of the 1982 Act. The Review officer could conceivably find that all rehabilitative measures have not been taken and that for that reason no order can be made. The history of the plaintiff’s compliance with the Corporation’s requests in this regard including attending an expert whose recommendation was not palatable to the Corporation, then attending another where the Corporation refused to pay the fees makes one feel that the view of the experienced orthopaedic surgeon — that the plaintiff is unable to work — may be the only feasible one. A reasonable hearing officer could easily come to the view that the preconditions of S.60 had been fulfilled and then proceed with an assessment. The plaintiff’s rights of appeal from the Review Officer’s decision are preserved.

If there is any difficulty about the wording of an appropriate declaration, then no doubt counsel will let me have a memorandum.

The plaintiff is entitled to costs. I fix these at a higher rate than normal because of the unjustifiable action of the Corporation in deliberately putting off this man’s proper claim until the new Act was passed. The plaintiff is awarded $2,500 costs plus disbursements as fixed by the Registrar.

NB this decision information has been reposted from another members post
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#3 User is offline   Alan Thomas 

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Posted 22 June 2017 - 09:33 PM

As can be seen my ACC branch manager Mr Orange was in the habit of disregarding the Act and at best did not even understand the Act.
Above all he was planning to withhold all s59 and s60 claims on the bases that he could calculate 1982 entittlements under the 1992 Act
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#4 User is offline   anonymousey 

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Posted 22 June 2017 - 10:16 PM

View PostAlan Thomas, on 22 June 2017 - 09:33 PM, said:

As can be seen my ACC branch manager Mr Orange was in the habit of disregarding the Act and at best did not even understand the Act.
Above all he was planning to withhold all s59 and s60 claims on the bases that he could calculate 1982 entittlements under the 1992 Act


This may be so Alan, but whatever Mr Orange may or may not have done, it would not be an issue for you back then let alone today ie if you had satisfed any of ALL of the other requirements ... then imho the King case might be useful in progressing only a small part of some of your claims forward etc

IMHO if you concentrate on the facts within your own claim ... and have each objectively verified ... then you may be able to dig yourself out of some of the mudpits they languish within imho

For example, you wrote

" 1992 ACC instructs surgeon to perform wrong surgery without my knowledge. Surgery turns out to the ill-conceived nonconsensual experimental surgery that failed causing additional harm. ACC had instructed the surgeon to perform a salvage procedure that would guarantee no possibility of pre injury occupation and still would not provide vocational rehabilitation confirming the ongoing nature of a S60 decision without notifying me of the decision. The decision maker was John Orange one month prior to the well-known King versus ACC case.."


How on earth can you claim John Orange instructed any surgeon to perform wrong surgery on you?

The NZLII shows it was you who sought additional maximum funds for your chosen surgeon to undertake an operation .... let alone any ACC Officer making such guarantees about miracle situations for any claimant ever Alan ...

Do you truly think you can manipulate time ... and then guess the minds and motivations of 3rd parties when you are flailing about with far more significant and serious problems eg your choices to obfuscate on a preinjury occupation and earnings are far more critical than some impossible miraculous surgical outcome ie NO SURGEON would ever give you any guarantee about any operation restoring you to some vague health status, let along some nondescript occupation that relates to some erratic employment history &or financial difficulties with earnings not corroborated by the PTBs or your own alleged professional accountant imho!

Note I said no surgeon would ever guarantee such an outcome 25 years ago. I doubt even today any respectable expert medic would be so foolhardy as to try and guess the outcome of any operation Alan ...

While I appreciate that you may prefer to blame ACC for your predicament and this extends to your counterclaims and allegations of assault from surgeons Alan, I highly doubt that in your many subsequent courtcases and medical consultations that any of these medics will have a clue who John Orange is or comprehend the 1982 legislation act themselves ...let alone make sense of all your stories and jiggerypokery hunting technicalities and loopholes sadly ...

For example,some of the story you have told over the years reads to me like, the surgeon commenced the operation. There was a set budget and operation approved via a DRSL Review. You progressed this dispute to that conclusion and then toddled off to get fixed up. You likely were all happy at this time. The surgeon probably too and so he started ... and then it was he may have made a discovery which led him to undertake another repair approach....

Then much later you appear to have learned from notes that something may have happened which led you to believe the operation was an experiment etc I do not even know how you have arrived at such an allegation Alan. At no time have I ever seen you write what any other surgeon would have done when faced with the same circumstances; let alone did you really think the surgeon would STOP midstream to consult on what appears to be a minor technicality? I have not even seen any of your cozy medics write in any medical report used by the Judges in NZLII that even such an experiment occurred and explains your medical status and blah blah Alan... I have not even seen a whisper about an error or misadventure being recorded either Alan :unsure:

IMHO after so much trouble and effort being expended by the medics in order to get the operation funded Alan, it would simply be a CATCH 22 situation for them ie if they stopped operating just on the offchance that YOU might be ignorant and unwilling to consider alternative approachs when justifed &or unable to understand that all surgery has risks or may be evaluated at the time etc
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#5 User is offline   Alan Thomas 

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Posted 22 June 2017 - 11:16 PM

Mr King and I were neighbours. John orange was the branch manager of our local ACC office. The decision John orange talk with regards to my case and Mr King's case was only about one month later. The bottom line is that John orange got it wrong and I had a legitimate expectation that once the courts directed the ACC to correct matters that ACC would correct mine as well, along with all the others. At the depths of that bottom line is that the ACC has stolen from us all. It isn't complicated.

In addition the difference between temporary and permanent incapacity is that in this compensation is calculated on the historical earnings for the temporarily incapacitated while the ACC is obliged to plot forward the probable potential earnings capacity for the permanently incapacitated.. As people such as Mr King and myself who own their own businesses can reasonably expect Alan come to be substantially higher than the average person, which it was for both of us, our earnings would continue to plot an upward trend. He would have been in the top 5% while I would hah paid substantially moreve been in the top 3% of earning generators in New Zealand.. Despite the fact that We paid substantially more levies than most people we still could not achieve our true earnings with as the ACC legislation if A top earnings amount which I think is grossly unfair as it smacks of the socialist style Robin Hood principle of Robin from the rich and giving to the poor.
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#6 User is offline   Alan Thomas 

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Posted 22 June 2017 - 11:17 PM


anonymousey
You seem to be doing exactly what the other tag team members are doing, repeating absolute false nonsense about historical facts. Please do not do that as it is not only dishonest and brings the site into disrepute it also has the potential of damaging my own name and confusing any reader of these postings. What you are actually doing is "criminally" defaming my name by your actions.



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#7 User is offline   anonymousey 

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Posted 22 June 2017 - 11:45 PM

View PostAlan Thomas, on 22 June 2017 - 11:16 PM, said:

Mr King and I were neighbours. John orange was the branch manager of our local ACC office. The decision John orange talk with regards to my case and Mr King's case was only about one month later. The bottom line is that John orange got it wrong and I had a legitimate expectation that once the courts directed the ACC to correct matters that ACC would correct mine as well, along with all the others. At the depths of that bottom line is that the ACC has stolen from us all. It isn't complicated.

In addition the difference between temporary and permanent incapacity is that in this compensation is calculated on the historical earnings for the temporarily incapacitated while the ACC is obliged to plot forward the probable potential earnings capacity for the permanently incapacitated.. As people such as Mr King and myself who own their own businesses can reasonably expect Alan come to be substantially higher than the average person, which it was for both of us, our earnings would continue to plot an upward trend. He would have been in the top 5% while I would hah paid substantially moreve been in the top 3% of earning generators in New Zealand.. Despite the fact that We paid substantially more levies than most people we still could not achieve our true earnings with as the ACC legislation if A top earnings amount which I think is grossly unfair as it smacks of the socialist style Robin Hood principle of Robin from the rich and giving to the poor.


OMG ...definitely will have to come back to this stuff Alan ...
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#8 User is offline   anonymousey 

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Posted 22 June 2017 - 11:45 PM

View PostAlan Thomas, on 22 June 2017 - 11:17 PM, said:

anonymousey
You seem to be doing exactly what the other tag team members are doing, repeating absolute false nonsense about historical facts. Please do not do that as it is not only dishonest and brings the site into disrepute it also has the potential of damaging my own name and confusing any reader of these postings. What you are actually doing is "criminally" defaming my name by your actions.



FGS ...definitely will have to come back to this stuff Alan ...
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#9 User is offline   anonymousey 

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Posted 23 June 2017 - 01:29 PM

View PostAlan Thomas, on 22 June 2017 - 11:16 PM, said:

Mr King and I were neighbours. John orange was the branch manager of our local ACC office. The decision John orange talk with regards to my case and Mr King's case was only about one month later. The bottom line is that John orange got it wrong and I had a legitimate expectation that once the courts directed the ACC to correct matters that ACC would correct mine as well, along with all the others. At the depths of that bottom line is that the ACC has stolen from us all. It isn't complicated.



Alan Thomas

The difference between your situation and the King decision you keep banging on about when blaming John Orange, appears to be that you were wanting to keep your cake and simultaneously wanting to eat it at the same time perhaps?

Diving down to the depths of your deep mudpits Alan, I would say that ACC and their officers may have made millions of decisions over the years which could need correcting for whatever reason. Just like similar organisations around the world Alan. It may be the Mr King was successful in his efforts following the judicial review, but I can not say as I have no access to legal resources Alan.

However it may be that this 1982 Section was the legislation which assisted Mr King. I am not sure how your purported claims for a Section 60 entitlement would be managed when decades later ...

100(3) Subject to sections 60 (5), 111 (5), and 112 (13) of this Act, any
decision made by the Corporation may be revised by the Corporation if it
appears to it that the decision has been made in error, whether by
reason of mistake or by reason of false or misleading information having
been supplied or by reason of fresh evidence or for any other reason,
and the Corporation may thereupon alter or amend any such decision or
revoke the decision and substitute another decision therefor:




View PostAlan Thomas, on 22 June 2017 - 11:16 PM, said:

In addition the difference between temporary and permanent incapacity is that in this compensation is calculated on the historical earnings for the temporarily incapacitated while the ACC is obliged to plot forward the probable potential earnings capacity for the permanently incapacitated.. As people such as Mr King and myself who own their own businesses can reasonably expect Alan come to be substantially higher than the average person, which it was for both of us, our earnings would continue to plot an upward trend. He would have been in the top 5% while I would hah paid substantially moreve been in the top 3% of earning generators in New Zealand.. Despite the fact that We paid substantially more levies than most people we still could not achieve our true earnings with as the ACC legislation if A top earnings amount which I think is grossly unfair as it smacks of the socialist style Robin Hood principle of Robin from the rich and giving to the poor.


Alan Thomas

hhhhmmmm where have you got such figures as 5% or 3% Alan?

Can you also clarify if you are referring to some personal IRD Levy Account ... OR something else like levy within petrol used by your cars when you were gallivanting around the country for or with your supposed earning generators??

The reason I am seeking to clarify your ideas about your levy payments back many years ago Alan is because the stories you have written about existing BEFORE your injury indicated minimal personal levy payments IMHO.

If it helps, your weekly ERC figure may also guide you to the correct information used by IRD for these deductions eg

Income liable for ACC earners' levy
Income liable for earners' levy includes:
salary and wages (overtime, backpay, holiday pay, long service leave, bonuses or gratuities and taxable allowances)
shareholder-employee salaries
salaries to partners in a partnership
salary or wages to owners in a look-through company (LTC)
active income from a look-through company
income from self-employment.

& If you receive a regular salary with PAYE deducted the company deducts earners' levy as part of your PAYE.

If you receive an irregular salary with no PAYE deducted:
up to 31 March 2001 the company deducted earners' levy from your salary and paid it in the company tax return

& Earners' levy is charged at a flat rate, which can change each year. There is a maximum amount of income that earners' levy is charged on. Any amount of salary or wages earned over this maximum isn't liable for earners' levy.


So the answer you need to confirm is whether or not you, or your company, paid the MAXIMUM EARNER LEVY for YOU during the FOUR YEARS prior to your purported hernia injury Alan.

BTW I note your comments about Robin Hood giving to the poor Alan, you may find there are numerous members [current or former] who were on higher weekly incomes than you .... who were also directly paying top levy contributions [not indirect via company structures] who were also disadvantaged by the maximum ERC rates.

Thank goodness that there is also a MAXIMUM levy obligation which you appear to not know about or have forgotten about perhaps?

This is also likely where the private insurance schemes slot in for the wealthy perhaps? Basically the choice from not paying the ACC Levy but sending it to some private insurer was still on the table for these potentially wealthy earning generators etc

Also if I remember right, you have previously blamed your accountant, for cancelling your policies but I am not sure of the timeframe involved during the 4 years &or bankruptcy problems you have confessed etc
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#10 User is offline   doppelganger 

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Posted 23 June 2017 - 05:48 PM

Just for others to keep in mind why Allan's claim for section 60 will go no further.

Section 138 of the 1992 Act.

(1A) Nothing in subsection (1) of this section shall apply in respect of any assessment of compensation under
section 114 of the Accident Compensation Act 1972 or section 60 of the Accident Compensation Act 1982
unless the assessment had been completed before the 1st day of October 1992 or a decision in respect of any
such assessment was subject to an application for review under Part IX of the Accident Compensation Act 1982
that was lodged before the 1st day of October 1992.

My application to have section 60 completed was on 11 June 1992 and received by ACC in June 1992 as recorded in the ACC file.
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#11 User is offline   Alan Thomas 

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Posted 23 June 2017 - 06:17 PM

View Postdoppelganger, on 23 June 2017 - 05:48 PM, said:

Just for others to keep in mind why Allan's claim for section 60 will go no further.

Section 138 of the 1992 Act.

(1A) Nothing in subsection (1) of this section shall apply in respect of any assessment of compensation under
section 114 of the Accident Compensation Act 1972 or section 60 of the Accident Compensation Act 1982
unless the assessment had been completed before the 1st day of October 1992 or a decision in respect of any
such assessment was subject to an application for review under Part IX of the Accident Compensation Act 1982
that was lodged before the 1st day of October 1992.

My application to have section 60 completed was on 11 June 1992 and received by ACC in June 1992 as recorded in the ACC file.


The correct Section but you make a wrong interpretation regarding my and others cases.
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#12 User is offline   anonymousey 

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Posted 23 June 2017 - 07:06 PM

View Postdoppelganger, on 23 June 2017 - 05:48 PM, said:

Just for others to keep in mind why Allan's claim for section 60 will go no further.

Section 138 of the 1992 Act.

(1A) Nothing in subsection (1) of this section shall apply in respect of any assessment of compensation under
section 114 of the Accident Compensation Act 1972 or section 60 of the Accident Compensation Act 1982
unless the assessment had been completed before the 1st day of October 1992 or a decision in respect of any
such assessment was subject to an application for review under Part IX of the Accident Compensation Act 1982
that was lodged before the 1st day of October 1992.

My application to have section 60 completed was on 11 June 1992 and received by ACC in June 1992 as recorded in the ACC file.


Thanks Dopple ... I do not have my older papers on hand but I was one of the numerous claimants who had their Section 78 and Section 79 entitlements arranged by an advocacy service back then. I cannot remember their names but there was a nationwide television advertisement possibly? Before these payments were recieved though, I think I do have a file note from 1991 which likely relates to when I spoke with my Rehabilitation Officer concerning permanent incapacity and my retirement from work on medical grounds ... but yup back then I was very naive and had little knowledge of the different sections, or forms and terminology being used by these ACC folk back then ...
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#13 User is offline   anonymousey 

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Posted 23 June 2017 - 07:06 PM

View PostAlan Thomas, on 23 June 2017 - 06:17 PM, said:

The correct Section but you make a wrong interpretation regarding my and others cases.


hhmmmm .... so it seems that you think your interpretation is the only correct one ... and that everybody else is wrong Alan!

I have just described in another thread that I was further along the pathway to permanent incapacity status and a Section 60 entitlement than you Alan. Doppleganger was even further than both of us.




View PostAlan Thomas, on 22 June 2017 - 10:18 PM, said:


KING v ACCIDENT COMPENSATION CORPORATION M1738/92) 15 July 1993; 2 August 1993

REMEDIES

There will be an order under the Judicature Amendment Act 1972 requiring the Corporation to have the plaintiff’s application for assessment under S.60 considered by a Review Officer under Part IX of the 1982 Act. The Review officer could conceivably find that all rehabilitative measures have not been taken and that for that reason no order can be made


Alan Thomas

Can you please describe your interpretation of the following Judicial Statement with regard to either King , or your own purported claims please :wacko:
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#14 User is offline   Alan Thomas 

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Posted 23 June 2017 - 07:19 PM

View Postanonymousey, on 23 June 2017 - 07:06 PM, said:

hhmmmm .... so it seems that you think your interpretation is the only correct one ... and that everybody else is wrong Alan!

I have just described in another thread that I was further along the pathway to permanent incapacity status and a Section 60 entitlement than you Alan. Doppleganger was even further than both of us.






Alan Thomas

Can you please describe your interpretation of the following Judicial Statement with regard to either King , or your own purported claims please Posted Image


I rely upon the very high level of expertise who have the necessary legal qualifications to inform me as to what the King case actually meant to claimants in my position.

It seems that you are cherry picking to support your own thinking when quoting this decision. It does not serve you well to quote just one portion of a sentence without looking at the context of that portion. The ACC had refused to carry out the s60 assessment processes because the legislation was about to change. In other words the ACC were seeking a financial benefit from not carrying out the directives of the legislation. The High Court directed the ACC to carry out the assessment and let the cars fall where they may. While it was a foregone conclusion that it was impossible for any other decision than s60, permanent incapacity, the judge re-emphasised that the decision that the ACC should have made and now was directed to make by way of third-party independent qualified assessment procedures would direct the ACC in the duty.

Again read the legislation and the decisions surrounding that legislation carefully and properly.
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#15 User is offline   anonymousey 

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Posted 23 June 2017 - 07:52 PM

View PostAlan Thomas, on 23 June 2017 - 07:19 PM, said:

I rely upon the very high level of expertise who have the necessary legal qualifications to inform me as to what the King case actually meant to claimants in my position.

It seems that you are cherry picking to support your own thinking when quoting this decision. It does not serve you well to quote just one portion of a sentence without looking at the context of that portion. The ACC had refused to carry out the s60 assessment processes because the legislation was about to change. In other words the ACC were seeking a financial benefit from not carrying out the directives of the legislation. The High Court directed the ACC to carry out the assessment and let the cars fall where they may. While it was a foregone conclusion that it was impossible for any other decision than s60, permanent incapacity, the judge re-emphasised that the decision that the ACC should have made and now was directed to make by way of third-party independent qualified assessment procedures would direct the ACC in the duty.

Again read the legislation and the decisions surrounding that legislation carefully and properly.


Alan Thomas

OMG the High Court Judgement clearly states under the Remedy that there was still the choice available to the DRSL Reviewer to find ALL rehabilitative measures had NOT been taken within Mr Kings case Alan...

You are the person blindly ignoring this very clear statement ... and then trying to force the facts to fit your own purported situation...

As I said above, I have no idea if Mr King eventually obtained his Section 60 entitlement or not. Do you?

Do you know if any other claimants have had their possible Section 60 entitlements reviewed after this High Court decision Alan?

bbl :wacko:
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#16 User is offline   Alan Thomas 

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Posted 23 June 2017 - 07:58 PM

View Postanonymousey, on 23 June 2017 - 07:52 PM, said:

Alan Thomas

OMG the High Court Judgement clearly states under the Remedy that there was still the choice available to the DRSL Reviewer to find ALL rehabilitative measures had NOT been taken within Mr Kings case Alan...

You are the person blindly ignoring this very clear statement ... and then trying to force the facts to fit your own purported situation...

As I said above, I have no idea if Mr King eventually obtained his Section 60 entitlement or not. Do you?

Do you know if any other claimants have had their possible Section 60 entitlements reviewed after this High Court decision Alan?

bbl Posted Image


It seems that you are oblivious to the point the judge was making. It was not up to the ACC to give themselves permission not to make a decision but rather they had a duty to make a decision. That decision would then be available for judicial challenge within the context of the ACC judicial scheme which involves review hearing, district court appeal, appeal to the High Court on points of law and then appeal to The Court of Appeal. however the ACC had not made a decision with the result that there was no ability for anyone to challenge the ACCs failure in their duty.. It was by way of a judicial review which is outside of the ACC legislated judicial system that the application for court intervention was made. While the court could have made the decision on the spot it did what the court usually does by wind the clock back with an instruction about what the respondent (ACC) was meant to do and direct them to do it. The ACC was required to determine the fellow King Degree of incapacity to perform the duties of is preinjury occupation and whether or not there is any prospect of ever gaining medical capacity to carry out those work tasks. If the answer was in the negative then it follows that the ACC was not to determine a temporary incapacity but to determine a permanent incapacity under section 60. Of course my neighbour Mr King received section 60 entitlements and continues to be permanently retired though generating earnings by another avenue and paying abatement of earnings to the ACC in the way in which is prescribed under the 1982 act. A very large number of us have then approached the ACC on the basis of the King decision request in the ACC to set about the task of determining temporary or permanent incapacity to return to the tasks of our pre-injury earnings. All people involved with ACC legislation at a higher level are perfectly well aware of this scenario.
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#17 User is offline   doppelganger 

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Posted 24 June 2017 - 04:36 PM

There are other made after this court case.
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#18 User is offline   doppelganger 

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Posted 24 June 2017 - 04:36 PM

There are other made after this court case.
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#19 User is offline   Alan Thomas 

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Posted 24 June 2017 - 05:14 PM

View Postdoppelganger, on 24 June 2017 - 04:36 PM, said:

There are other made after this court case.


Your grammar does not make it clear as to what you are trying to say.. Please rephrase together with the relevant information to make your posting helpful.
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#20 User is offline   doppelganger 

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Posted 24 June 2017 - 07:13 PM

You can do the search your self. It is available in the public forum. As you reported you are in the know and I am not.
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