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Loss of potential earnings

#1 User is offline   Kiwichick 

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Posted 25 September 2017 - 01:11 PM

I have been on weekly comp for the last year and a half, since unsuccessful surgery. My accident was around two years before surgery, due to having to fight ACC for nearly two years for cover. At the time of my accident I was only working part time and earning around $600 per week, so my weekly comp has been calculated from this wage, and is $405 per week after tax. A week after my accident I graduated to full time and was then paid around $900 per week, until the surgery, over a year later. I have hardly worked after surgery due to pain and impairment, and two more surgeries for different injuries. I am wondering if i can claim LOPE as I would have been earning $900 per week and have struggled for ages on 80% of my part-time wage.
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#2 User is offline   Alan Thomas 

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Posted 25 September 2017 - 04:29 PM

View PostKiwichick, on 25 September 2017 - 01:11 PM, said:

I have been on weekly comp for the last year and a half, since unsuccessful surgery. My accident was around two years before surgery, due to having to fight ACC for nearly two years for cover. At the time of my accident I was only working part time and earning around $600 per week, so my weekly comp has been calculated from this wage, and is $405 per week after tax. A week after my accident I graduated to full time and was then paid around $900 per week, until the surgery, over a year later. I have hardly worked after surgery due to pain and impairment, and two more surgeries for different injuries. I am wondering if i can claim LOPE as I would have been earning $900 per week and have struggled for ages on 80% of my part-time wage.


Quite obviously the legislation requires ACC to pay you at the greater amount of earnings compensation as a result of your initial injury.

Further There seems to be a cumulative effect from your subsequent injuries all of which must be taken into account with regards to the total earnings compensation. Whichever way we look at it ACC have a liability to calculate earnings compensation at the greatest amount.

In another post you indicate that John Miller's company is tending to your ACC needs. What is the nature of the problem his firm is experiencing in getting new the proper amount?
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#3 User is offline   Kiwichick 

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Posted 25 September 2017 - 05:19 PM

View PostAlan Thomas, on 25 September 2017 - 04:29 PM, said:

Quite obviously the legislation requires ACC to pay you at the greater amount of earnings compensation as a result of your initial injury.

Further There seems to be a cumulative effect from your subsequent injuries all of which must be taken into account with regards to the total earnings compensation. Whichever way we look at it ACC have a liability to calculate earnings compensation at the greatest amount.

In another post you indicate that John Miller's company is tending to your ACC needs. What is the nature of the problem his firm is experiencing in getting new the proper amount?


Thanks Alan, I have not approached the lawyer with this yet. They are fighting my cover for surgery claim at the moment, and were sucessful in getting my outright cover re-instated recently when ACC kicked me off saying degradation, etc, for the second time. Just wanted to see if I had a chance before attempting it.
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#4 User is offline   Kiwichick 

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Posted 25 September 2017 - 05:30 PM

View PostKiwichick, on 25 September 2017 - 05:19 PM, said:

Thanks Alan, I have not approached the lawyer with this yet. They are fighting my cover for surgery claim at the moment, and were sucessful in getting my outright cover re-instated recently when ACC kicked me off saying degradation, etc, for the second time. Just wanted to see if I had a chance before attempting it. ACC firmly tell me the amount is calculated on my wage AT THE TIME of the accident, and that it's too bad that i started to earn more straight after it.

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#5 User is offline   Lupine 

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Posted 27 September 2017 - 12:55 PM

LOPE does not apply. As you are on ERC already you are classed as an earner. You have to have been a potential earner as below.


Clause 47

47 Corporation to pay weekly compensation for loss of potential earnings capacity
(1) The Corporation is liable to pay weekly compensation for loss of potential earning capacity to a claimant who—

(a)
has an incapacity resulting from a personal injury; and

(b)
was a potential earner immediately before his or her incapacity commenced; and

©
is 18 years or over; and

(d)
is not engaged in full-time study or training; and

(e)
does not have earnings in excess of the amount of minimum weekly earnings determined under clause 42(3).

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#6 User is offline   ACC loser 

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Posted 29 September 2017 - 11:55 AM

View PostLupine, on 27 September 2017 - 12:55 PM, said:

LOPE does not apply. As you are on ERC already you are classed as an earner. You have to have been a potential earner as below.


Clause 47

47 Corporation to pay weekly compensation for loss of potential earnings capacity
(1) The Corporation is liable to pay weekly compensation for loss of potential earning capacity to a claimant who—

(a)
has an incapacity resulting from a personal injury; and

(B)
was a potential earner immediately before his or her incapacity commenced; and

©
is 18 years or over; and

(d)
is not engaged in full-time study or training; and

(e)
does not have earnings in excess of the amount of minimum weekly earnings determined under clause 42(3).

would this also apply for some one was removed from the system 7 years ago but still has many injuries . And now lives off No income from ACC or Wins due to the fact my wife's income is to high ?
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#7 User is offline   Alan Thomas 

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Posted 29 September 2017 - 02:22 PM

View PostACC loser, on 29 September 2017 - 11:55 AM, said:

would this also apply for some one was removed from the system 7 years ago but still has many injuries . And now lives off No income from ACC or Wins due to the fact my wife's income is to high ?


I appear to be suffering from the same situation whereby ACC cancelled my claim on the basis that I was working and because I cannot work I am prone to even more injuries which have prevented me from ever returning to my preinjury occupation with the ACC claiming that I am not entitled to any further ERC because I'm not working. Go figure
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#8 User is offline   Lupine 

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Posted 29 September 2017 - 06:01 PM

 ACC loser, on 29 September 2017 - 11:55 AM, said:

would this also apply for some one was removed from the system 7 years ago but still has many injuries . And now lives off No income from ACC or Wins due to the fact my wife's income is to high ?


Only if she was on ERC as a PLOE Earner. Otherwise the goal is to restore her entitlement she has as an earner.
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#9 User is offline   Kiwichick 

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Posted 29 September 2017 - 11:13 PM

Sorry, what is ERC? So I still don't understand whether I have grounds for a claim. I had the accident when I was working part-time, had some time off then went back to work, and started full-time hours. So went from around $400 per week to $800 per week. Fought acc for 1.5 years to accept claim and fund surgery and worked full time all that time. Had surgery which was unsuccessful and made injury worse. Couldn't go back to work after that, for the last nearly two years. Shouldn't my weekly comp be calc on the full time wage I was earning at the time of SURGERY rather than the part time wage at the time of the accident. They say that seeing as it was calculated so low they have topped me up to the minimum amount which is $405 after tax. It's miserable living like this
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#10 User is offline   Lupine 

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Posted 30 September 2017 - 10:59 AM

 Kiwichick, on 29 September 2017 - 11:13 PM, said:

Sorry, what is ERC? So I still don't understand whether I have grounds for a claim. I had the accident when I was working part-time, had some time off then went back to work, and started full-time hours. So went from around $400 per week to $800 per week. Fought acc for 1.5 years to accept claim and fund surgery and worked full time all that time. Had surgery which was unsuccessful and made injury worse. Couldn't go back to work after that, for the last nearly two years. Shouldn't my weekly comp be calc on the full time wage I was earning at the time of SURGERY rather than the part time wage at the time of the accident. They say that seeing as it was calculated so low they have topped me up to the minimum amount which is $405 after tax. It's miserable living like this



ERC is earnings related compensation.

Were you self-employed at the time of your accident?
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#11 User is offline   Kiwichick 

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Posted 01 October 2017 - 12:11 PM

Thanks. No, not self-employed. Was working part-time as an employee in client services16 hrs per week, then just after accident had a week off then started full time 32+ hrs per week and stayed at these hours for 1.5 years til surgery, then no work after that
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#12 User is offline   Alan Thomas 

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Posted 01 October 2017 - 01:18 PM

Kiwi chick perhaps if I just summarise. Correct me if I am wrong.

You will working part-time
you had an injury
You could not work because of your injury in your chosen profession

You took up another occupation that did not compromise your injury
you then worked full-time
you then had surgery in relation to the injury
Subsequent to the surgery you could not work at all.

Even if the sequence I have written is wrong in some way the fact is that you had an accident event that resulted in an injury that required surgery and that after surgery you could not work.

The principle involved here is the "but-for-the-accident-event" criteria.
What really matters is that you had an accident event, was injured, needed surgery and that due to the accident event that required surgery you now cannot work.

The ACC liability in this matter is to pay you earnings compensation at the greater rate. This could be and usually is the amount of earnings prior to the injury but if you were subsequently able to work and earned more, had surgery then could not work, then the ACC must pay you 80% of the greater amount. there is no if buts or maybes in this As the legislation is quite straightforward. Your case manager is either completely ignorant or they are deliberately cheating you. The instructions to ACC staff is that they are to make a decision that it is arguable in court. This is the "spiderweb principle" instruction. What they are trying to do is to shift the onus on to yourself to correct what is more likely than not a known wrong committed by them. That of course is fundamentally dishonest and without doubt insurance fraud. Therefore they will claim ignorance if push comes to shove.
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#13 User is offline   Lupine 

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Posted 02 October 2017 - 06:36 AM

View PostKiwichick, on 01 October 2017 - 12:11 PM, said:

Thanks. No, not self-employed. Was working part-time as an employee in client services16 hrs per week, then just after accident had a week off then started full time 32+ hrs per week and stayed at these hours for 1.5 years til surgery, then no work after that


I see.

So your position is that you had earner status as a part time employee at the date of first incapacity. That box is ticked.

You then went to work full time for 1.5 years in a full time position which produced a higher level of earnings.

You are now incapacitated due to the injury received at the time you were working part time due to surgery you received later. ACC is paying you based on the earnings received while you worked part time.


34 Weekly earnings if earner had earnings as an employee in permanent employment immediately before incapacity commenced: calculations
(1) This subclause applies to each of the 4 weeks after the first week of incapacity. The claimant’s weekly earnings for each of the 4 weeks are calculated using the following formula:
a b
where—
a is the claimant’s earnings as an employee (from that permanent employment) in the 4 weeks immediately before his or her incapacity commenced
b is the number of full or part weeks during which the claimant earned those earnings as an employee in those 4 weeks.
(2) This subclause applies to any weekly period of incapacity after the 4 weeks described in subclause (1). The claimant’s weekly earnings for any such weekly period are calculated using the following formula:
a b
where— a
is the claimant’s earnings as an employee (from employment with that employer) in the 52 weeks immediately before his or her incapacity commenced
b is the number of full or part weeks during which the claimant earned those earnings as an employee.
(3) For the purposes of this clause the following must be disregarded in calculating weekly earnings:
(a) any period during which the claimant was entitled to weekly compensation; and
(b) any earnings in respect of any such period.

As you worked full time for 1.5 years then you were not incapacitated so ACC cannot claim you had incapacity that has been ongoing since the date of the accident. In your case your incapacity is a fresh incapacity and the Corporation must pay out on the earnings received immediately before this current incapacity under Clause 34. If what you are saying is correct then you are being underpaid.
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#14 User is offline   Alan Thomas 

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Posted 02 October 2017 - 10:46 AM

Lupin

You said
"As you worked full time for 1.5 years then you were not incapacitated so ACC cannot claim you had incapacity that has been ongoing since the date of the accident. In your case your incapacity is a fresh incapacity and the Corporation must pay out on the earnings received immediately before this current incapacity under Clause 34. If what you are saying is correct then you are being underpaid."

Why do you conclude just because someone worked for the 1.5 years that they were not incapacitated?
Probably the majority of people who are injured in New Zealand continue to work while they are incapacitated to work. As an employer I know these things.
Is it your thinking that the injured and members of the community should carry the burden of peoples injuries as an alternative to the ACC?

Why would you suggest that ACC cannot determine its liability from the date of the accident event?
To my way of thinking this is a case for a proper calculation which of course would include an abatement of earnings calculation as opposed to some kind of suggestion of no entitlement.

Accident events that result in injuries deliver an infinitely variable degree of incapacity that may ebb and wane depending on the nature of the injury and nature of the work. The amount of work or earnings is irrelevant to the degree of incapacity and is not the In itself the criteria of measurement described in legislation.

Clause 34 describes the ACC liability beginning immediately after the first incapacity. Obviously if there has been an accident event causing an injury then there would be an incapacity to some degree immediately. Quite frequently claimants continue on working while incapacitated (I know I've been an employer) and steadily deteriorate. The continuation of working in the situation has an infinite number of different reasons and those reasons are absolutely and totally irrelevant to the ACC calculation as the calculation is limited to that of the degree of incapacity. With regards to entitlement to earnings that is total at the outset but as adjusted by way of abatement of earnings depending of someone worked while incapacitated.

Obviously in this case of a person was waiting for surgery and continued to work while waiting for surgery they will have been incapacitated otherwise they would not be needing surgery. The fact that a person might work full time for example does not mean that they are not incapacitated and do not need surgery. that would be ridiculous thinking and demonstrating gross incompetence on the part of the decision maker.

With regards to determining entitlements of earnings compensation legislation requires it to be paid at the greater amount. So for example if the person carried on working either at the same job or a new job and earned a lot more ACC would have to pay the greater amount it subsequently the person found that because of the original accident and resulting incapacity that the levels of incapacity and increased to such that they could no longer work and earn at all or any variable amount in between. The level of earnings compensation is measured by the maximum potential earnings in such a normal event.

This is not a case for calculations under the loss of potential earnings as the mode of calculation is under the ordinary procedures. If someone attempted to calculate loss of potential earnings then they would find themselves on the wrong set of railway tracks and will get truly railroaded.


With regards to the surgical activity that is not the cause in itself of the ACCs liability to fund earnings compensation but rather it was the original accident. In the event that there was a surgical accident mistake or misadventure then of course they would also be an additional accident event but we must be mindful of the fact that the surgery was being undertaken because of the original accident and as such the surgery was consequential to the accident and only part of the factual matrix but not the defining factual point.
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#15 User is offline   Lupine 

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Posted 03 October 2017 - 11:59 AM

View PostAlan Thomas, on 02 October 2017 - 10:46 AM, said:

Lupin

You said
"As you worked full time for 1.5 years then you were not incapacitated so ACC cannot claim you had incapacity that has been ongoing since the date of the accident. In your case your incapacity is a fresh incapacity and the Corporation must pay out on the earnings received immediately before this current incapacity under Clause 34. If what you are saying is correct then you are being underpaid."

Why do you conclude just because someone worked for the 1.5 years that they were not incapacitated?
Probably the majority of people who are injured in New Zealand continue to work while they are incapacitated to work. As an employer I know these things.
Is it your thinking that the injured and members of the community should carry the burden of peoples injuries as an alternative to the ACC?

Why would you suggest that ACC cannot determine its liability from the date of the accident event?
To my way of thinking this is a case for a proper calculation which of course would include an abatement of earnings calculation as opposed to some kind of suggestion of no entitlement.

Accident events that result in injuries deliver an infinitely variable degree of incapacity that may ebb and wane depending on the nature of the injury and nature of the work. The amount of work or earnings is irrelevant to the degree of incapacity and is not the In itself the criteria of measurement described in legislation.

Clause 34 describes the ACC liability beginning immediately after the first incapacity. Obviously if there has been an accident event causing an injury then there would be an incapacity to some degree immediately. Quite frequently claimants continue on working while incapacitated (I know I've been an employer) and steadily deteriorate. The continuation of working in the situation has an infinite number of different reasons and those reasons are absolutely and totally irrelevant to the ACC calculation as the calculation is limited to that of the degree of incapacity. With regards to entitlement to earnings that is total at the outset but as adjusted by way of abatement of earnings depending of someone worked while incapacitated.

Obviously in this case of a person was waiting for surgery and continued to work while waiting for surgery they will have been incapacitated otherwise they would not be needing surgery. The fact that a person might work full time for example does not mean that they are not incapacitated and do not need surgery. that would be ridiculous thinking and demonstrating gross incompetence on the part of the decision maker.

With regards to determining entitlements of earnings compensation legislation requires it to be paid at the greater amount. So for example if the person carried on working either at the same job or a new job and earned a lot more ACC would have to pay the greater amount it subsequently the person found that because of the original accident and resulting incapacity that the levels of incapacity and increased to such that they could no longer work and earn at all or any variable amount in between. The level of earnings compensation is measured by the maximum potential earnings in such a normal event.

This is not a case for calculations under the loss of potential earnings as the mode of calculation is under the ordinary procedures. If someone attempted to calculate loss of potential earnings then they would find themselves on the wrong set of railway tracks and will get truly railroaded.


With regards to the surgical activity that is not the cause in itself of the ACCs liability to fund earnings compensation but rather it was the original accident. In the event that there was a surgical accident mistake or misadventure then of course they would also be an additional accident event but we must be mindful of the fact that the surgery was being undertaken because of the original accident and as such the surgery was consequential to the accident and only part of the factual matrix but not the defining factual point.


You may recall that a claimant who can maintain 30 hours a week is considered as having capacity for full time work as per the legislation. As this claimant has been working full time for 1.5 years then the Act does not consider her incapacitated. Very basic stuff really.
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#16 User is offline   Alan Thomas 

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Posted 03 October 2017 - 01:08 PM

View PostLupine, on 03 October 2017 - 11:59 AM, said:

You may recall that a claimant who can maintain 30 hours a week is considered as having capacity for full time work as per the legislation. As this claimant has been working full time for 1.5 years then the Act does not consider her incapacitated. Very basic stuff really.


I think you need to read the legislation little bit more carefully than that. Working is not the criteria to determine an end of incapacity. The determination is made by way of medical report which is mandatory. Other information may be helpful but does not form the criteria..

Vast numbers of people disobey their doctors instructions and work while injured. That does not mean that they are far too injured to work!

It is not helpful for you to sing the ACC song as on this site the objective is to adhere to the legislated criteria.
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#17 User is offline   doppelganger 

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Posted 08 October 2017 - 09:12 PM

Hi
You might want to look at section 20
20 Cover for personal injury suffered in New Zealand (except mental injury
caused by certain criminal acts or work-related mental injury)
(1) A person has cover for a personal injury if—
(a) he or she suffers the personal injury in New Zealand on or after 1 April
2002; and
(B) the personal injury is any of the kinds of injuries described in section
26(1)(a) or (B) or © or (e); and
© the personal injury is described in any of the paragraphs in subsection
(2).
(2) Subsection (1)© applies to—
(a) personal injury caused by an accident to the person:
(B) personal injury that is treatment injury suffered by the person:
© treatment injury in circumstances described in section 32(7):
(d) personal injury that is a consequence of treatment given to the person for
another personal injury for which the person has cover:
(e) personal injury caused by a work-related gradual process, disease, or infection
suffered by the person:
(f) personal injury caused by a gradual process, disease, or infection that is
treatment injury suffered by the person:
(g) personal injury caused by a gradual process, disease, or infection consequential
on personal injury suffered by the person for which the person
has cover:
(h) personal injury caused by a gradual process, disease, or infection consequential
on treatment given to the person for personal injury for which
the person has cover:

(i) personal injury that is a cardiovascular or cerebrovascular episode that is
treatment injury suffered by the person:
(j) personal injury that is a cardiovascular or cerebrovascular episode that is
personal injury suffered by the person to which section 28(3) applies.
(3) Subsections (1) and (2) are subject to the following qualifications:
(a) section 23 denies cover to some persons otherwise potentially within the
scope of subsection (1):
(B) section 24 denies cover to some persons otherwise potentially within the
scope of subsections (1) and (2)(e).
(4) A person who suffers personal injury that is mental injury in circumstances described
in section 21 has cover under section 21, but not under this section.

You might want to look at making a new claim with the date of incapacity at the date of surgery.
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