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Human suffering acc Human suffering

#1 User is offline   INTER 

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Posted 04 January 2018 - 05:23 PM

Here is a new Question What is definition of

Human suffering




In ACC Act's new or Old ?

prefer facts , case law, links. As most of clients on Acc will have some sort of Suffering BUT

BUT What is the Factual ACC Requirement under acc acts ? past or present.

UNDER Activities of Daily Living - ADL you could define ADL OF Family Responsibilities
Shopping, cooking, doing laundry, cleaning, caring for yard, caring for family and pets, managing money.

if you could define caring for yard etc as a basic function of daily living acc will spit tacks ::



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#2 User is offline   doppelganger 

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Posted 05 January 2018 - 06:16 PM

Personally I would look at section 3

3 Purpose
The purpose of this Act is to enhance the public good and reinforce the social
contract represented by the first accident compensation scheme by providing
for a fair and sustainable scheme for managing personal injury that has, as its
overriding goals, minimising both the overall incidence of injury in the community,
and the impact of injury on the community (including economic,
social, and personal costs), through—

(a) establishing as a primary function of the Corporation the promotion of
measures to reduce the incidence and severity of personal injury:
(B) providing for a framework for the collection, co-ordination, and analysis
of injury-related information:
© ensuring that, where injuries occur, the Corporation’s primary focus
should be on rehabilitation with the goal of achieving an appropriate
quality of life through the provision of entitlements that restores to the
maximum practicable extent a claimant’s health, independence, and participation:
(d) ensuring that, during their rehabilitation, claimants receive fair compensation
for loss from injury, including fair determination of weekly compensation
and, where appropriate, lump sums for permanent impairment:
(e) ensuring positive claimant interactions with the Corporation through the
development and operation of a Code of ACC Claimants’ Rights:
(f) ensuring that persons who suffered personal injuries before the commencement
of this Act continue to receive entitlements where appropriate.

You are part of te community were on the other hand ACC are not part of the community. ACC may disagree and claim they are part of the community.
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#3 User is offline   MINI 

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Posted 06 January 2018 - 08:35 AM

View Postdoppelganger, on 05 January 2018 - 06:16 PM, said:

Personally I would look at section 3

3 Purpose
The purpose of this Act is to enhance the public good and reinforce the social
contract represented by the first accident compensation scheme by providing
for a fair and sustainable scheme for managing personal injury that has, as its
overriding goals, minimising both the overall incidence of injury in the community,
and the impact of injury on the community (including economic,
social, and personal costs), through—

(a) establishing as a primary function of the Corporation the promotion of
measures to reduce the incidence and severity of personal injury:
(B)/> providing for a framework for the collection, co-ordination, and analysis
of injury-related information:
© ensuring that, where injuries occur, the Corporation’s primary focus
should be on rehabilitation with the goal of achieving an appropriate
quality of life through the provision of entitlements that restores to the
maximum practicable extent a claimant’s health, independence, and participation:
(d) ensuring that, during their rehabilitation, claimants receive fair compensation
for loss from injury, including fair determination of weekly compensation
and, where appropriate, lump sums for permanent impairment:
(e) ensuring positive claimant interactions with the Corporation through the
development and operation of a Code of ACC Claimants’ Rights:
(f) ensuring that persons who suffered personal injuries before the commencement
of this Act continue to receive entitlements where appropriate.

You are part of te community were on the other hand ACC are not part of the community. ACC may disagree and claim they are part of the community.

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#4 User is offline   MINI 

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Posted 06 January 2018 - 08:43 AM

Doopleganger,

All public servants are supposed to be part of the community. ACC just act a little differently than most govt entities.

They use ACC as an insurance agency, not what their purpose states or intended. Human Rights is starting to show that by allowing cases against ACC to be heard and often beginning to be heard in our favour.

Keep your eye on those and see how the claimants are beginning to prove that ACC are not using the Human Right principles when making decisions against a claimant.

Most interesting.

Now watch AT disallow our posts.

Mini
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#5 User is offline   doppelganger 

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Posted 08 January 2018 - 11:45 AM

They are part of the Comminity if they apply the legislation and not part of the Community when looking to increase there cost to the community for there dishonest actions or breach od Humans rights.
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#6 User is offline   Alacrity 

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Posted 09 January 2018 - 09:36 AM

These claimants certainly had their pain and suffering alleviated!!....... This was from the NZ Herald last year.



ACC funds ATVs for clients recreational needs

10 Sep, 2017 5:00am



The Accident Compensation Corporation has paid out hundreds of thousands of dollars for all-terrain vehicles (ATVs) so injured people can go fishing, hunting and to the beach.

An Official Information Act (OIA) request from the Herald on Sunday, revealed ACC spent $326,291 (+ GST) on 18 ATVs over two years.

Of those, 13 were for recreational needs only, at a cost of $236,878 (+GST). Four were for a mix of recreational needs and vocational needs, at $76,370 (+GST). And just one was for vocational needs alone, at $13,043 (+GST).

"The examination of the 18 claims revealed recreational needs included access to the beach and wider community, return to preinjury activities such as fishing and hunting, participating in rural community events, and engaging with family and friends in line with pre-injury engagement as far as practicable," ACC said.
"Vocational needs variously included return to pre injury role, maintaining employment on family farm, and obtaining employment."

The highest ACC spend on a single client over the period was $35,437. That included the purchase of an ATV for about $26,000, plus modifications.

"The prime reason for ACC funding was to meet the client's recreational needs," ACC said.

In response to follow-up questions from the OIA response, ACC revealed it contributed to 6 ATVs from July 2015 to June 2016, and 12 ATVs from July 2016 to June 2017.

"A large proportion of these are purchased for clients who have sustained a spinal cord injury," an ACC spokesperson said.

"When considering a client's recreational or vocational needs, ACC needs to consider all mobility options to enable the client to return to pre-injury level of community, recreational and vocational activity.
"If being considered for recreational activities the ATV is always used for more than one recreational activity.

"If return to employment is identified as an appropriate outcome for a client but they require an ATV to sustain the employment then ACC can consider a contribution to the ATV or to modify an existing ATV."

If considering contributing to the purchase of an ATV, an assessor "is asked to identify the client's injury-related needs and the mobility options to meet the need".

"ACC then makes a contribution towards the most practicable option. Practicable includes considering the cost effectiveness of the recommended option. The client is then able to make a contribution if they want to consider an alternative make for model."

Approval for the ACC contributions are "required from a higher delegation as the ATV are not common list equipment".

Each year, ACC declines about 93,000 claims in the "big four" categories of decisions (claim cover, elective surgery, weekly compensation, and independence allowance/lump sum entitlements) plus a number of smaller categories (such as accidental death, social rehabilitation, treatment and vocational rehabilitation), an ACC spokesperson said.

ACC handles about two million new claims a year.
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#7 User is offline   INTER 

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Posted 09 January 2018 - 10:35 AM

That's a dam fine bit of information AS how many acc clients have been turned down by there case worker
Without been advised of such options, where as way back in the day of your S119/120 S78/79 assessments you HAD NOTED

return to pre-injury activities such as fishing and hunting, participating in rural community events, and engaging with family and friends in line with pre-injury engagement as far as practicable," ACC said NOOOOOOOOOOOOOOOOOOOO

http://www.nzherald....jectid=11915478
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#8 User is offline   Alan Thomas 

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Posted 09 January 2018 - 10:41 AM


Alacrity



I wonder if the average reader recognises that providing expensive luxuries and toys to a few to alleviate their pain does not alleviate the pain of the mass of other claimants who grow a number each year who need simple things like surgery so they can return to work and therefore become self-sufficient and afford their own luxuries and toys.

Further why do some claimants receive luxuries and toys what others in the exact same circumstances do not?




We will note that the ACC has a complaints department that despite the legislation has returned to its former days of being public relations office wasting money on spin doctoring work. How much time and money does the ACC spend avoiding spending money and actually rehabilitating in a timely fashion.




What does practicable really mean when it comes to alleviating the burden on society?



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#9 User is offline   Alacrity 

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Posted 09 January 2018 - 12:00 PM

View PostINTER, on 09 January 2018 - 10:35 AM, said:

That's a dam fine bit of information AS how many acc clients have been turned down by there case worker
Without been advised of such options, where as way back in the day of your S119/120 S78/79 assessments you HAD NOTED

return to pre-injury activities such as fishing and hunting, participating in rural community events, and engaging with family and friends in line with pre-injury engagement as far as practicable," ACC said NOOOOOOOOOOOOOOOOOOOO

http://www.nzherald....jectid=11915478



I can not divulge too much at the moment as I am currently working with a renowned ACC specialist lawyer involving a HRT lodgement which should take place shortly. We are very encouraged as there has been the change in government and the suits at ACC can no longer hide behind their "puppet" ministers..
It is too late for me as my delayed diagnosis took 8 years!!, and the damage had been done well and truly to my psychological wellbeing. I had made a formal complaint and did receive the big apology letter, the complaints person even sent everything to head office so they could check that no legislation had been breached....answer came back NO more breaches of our legislation.....umm ACC lawyer leapt out of he's chair when I gave them copies of my file!!.

Anyway this section of the act we may well use in laying a claim for a Treatment injury and how ACC have applied/ignored their own legislation in my case....this will be under (d) and (h) of the following.



Treatment
(1)
For the purposes of determining whether a treatment injury has occurred, or when that injury occurred, treatment includes—
(a)
the giving of treatment:
(B)
a diagnosis of a person’s medical condition:
©
a decision on the treatment to be provided (including a decision not to provide treatment):
(d)
a failure to provide treatment, or to provide treatment in a timely manner:
(e)
obtaining, or failing to obtain, a person’s consent to undergo treatment, including any information provided to the person (or other person legally entitled to consent on their behalf if the person does not have legal capacity) to enable the person to make an informed decision on whether to accept treatment:
(f)
the provision of prophylaxis:
(g)
the failure of any equipment, device, or tool used as part of the treatment process, including the failure of any implant or prosthesis (except where the failure of the implant or prosthesis is caused by an intervening act or by fair wear and tear), whether at the time of giving treatment or subsequently:
(h)
the application of any support systems, including policies, processes, practices, and administrative systems, that—
(i)
are used by the organisation or person providing the treatment; and
(ii)
directly support the treatment.
(2)
Subsection (1) does not affect the application of the definition of treatment in section 6(1) for purposes other than those stated in subsection (1).
(3)
Subsection (2) is for the avoidance of doubt.
Section 33: substituted, on 1 July 2005, by section 13 of the Injury Prevention, Rehabilitation, and Compensation Amendment Act (No 2) 2005 (2005 No 45).
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#10 User is offline   INTER 

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Posted 09 January 2018 - 01:25 PM

It is too late for me as my delayed diagnosis took 8 years!!, and the damage had been done well and truly to my psychological wellbeing


IS that all IM now at around 42 years and still trying getting no where fast

as only found out in around 2013 how badly ive been screwed over with no rehab or any other assistance :

and were screwed onto the sickness benefit since 1988 :

BIT of useful stuff here for others to find out how badly they have been advised of what could have been offered by acc BUT Weren't .

http://austlii.commu...ZACCLawHandbook
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#11 User is offline   MINI 

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Posted 10 January 2018 - 02:23 PM

View PostINTER, on 09 January 2018 - 01:25 PM, said:

It is too late for me as my delayed diagnosis took 8 years!!, and the damage had been done well and truly to my psychological wellbeing


IS that all IM now at around 42 years and still trying getting no where fast

as only found out in around 2013 how badly ive been screwed over with no rehab or any other assistance :

and were screwed onto the sickness benefit since 1988 :

BIT of useful stuff here for others to find out how badly they have been advised of what could have been offered by acc BUT Weren't .

http://austlii.commu...ZACCLawHandbook


INTER

It is never to late. If you have extrodinary circumstance, you can always file a late application. They can only say no, and if they do you will be able to go to Review and District Court. Maybe the judge will have a different idea than ACC when he hears your story.

Back to 1988. It is worth a go. Lots have won in your circumstances.

I lot of them thru here and most on record ie DC cases as case law.

Have you also got a treatment injury as they call them these days?

Others of us have also so there is plenty of help about.

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#12 User is offline   greg 

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Posted 10 January 2018 - 02:48 PM

If as you claim you were first screwed around in 1988 , you should be under the 82 ACC Act.

If true , the 82 ACC Act is all you should use and quote from .

This is of course if you had a registered injury under the 72 or 82 ACC Act.
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#13 User is offline   MINI 

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Posted 10 January 2018 - 04:39 PM

View Postgreg, on 10 January 2018 - 02:48 PM, said:

If as you claim you were first screwed around in 1988 , you should be under the 82 ACC Act.

If true , the 82 ACC Act is all you should use and quote from .

This is of course if you had a registered injury under the 72 or 82 ACC Act.


Thanks Gregg

I am not sure if the 1982 Act had Treat Injury in it.

But will have a good look, before committing myself.

Apparently it can take nine months even for 'cover'.

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#14 User is offline   INTER 

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Posted 10 January 2018 - 05:11 PM

Yep im under cover from the 1972 act and Recurrence under 82 act, But so much bullshit over the years.

Had a disputes hearing last year and got
>>> My
decision in this matter is that the jurisdiction is declined. That means that I do not have
jurisdiction to consider the substantive matter of the review.

So i had the Option to File WITHIN 28 days TO appeal the Reviewer’s decision to the District Court.

BUT BUT no big law firms wanted to take my case on.

got 4 sorry to complicated for us to consider.

injury was in the 70/s recurrence in the 80/s.

and in 2015 i Find out i were well screwed, now so sorry to late we win u lose ::

Claim is still current still going round in circles playing the acc game of trying to find an assessor who will tell them degeneration not injury.

despite the fact have cover for degeneration, AND Confirmed mri and follow up notes's to SAY MR HAS XXXX due to long standing of XXXXX
and has a Confirmed XXX of power xxx weakness ::

BUT u guessed it Acc and case manager wont accept it, and keep Requesting more assessments each time that it doesn't go there way :

even when u point out under that legislation a another / assessment is not required as you have cover for ALL mental and physical consequences of INJURY :


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#15 User is offline   greg 

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Posted 10 January 2018 - 05:16 PM

Do you have any registered ACC. injury claim numbers from that time.?.
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#16 User is offline   Alan Thomas 

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Posted 10 January 2018 - 05:35 PM

Inter What was the reason for the reviewer to decline jurisdiction?

Under the 1972 & 1982L egislations there is a different procedure which is not under the current review hearing jurisdiction. This means that you could probably still apply under the old jurisdiction as opposed to appealing of the district court.. Perhaps someone with more knowledge and experience in these matters could comment
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#17 User is offline   INTER 

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Posted 10 January 2018 - 06:20 PM

View Postgreg, on 10 January 2018 - 05:16 PM, said:

Do you have any registered ACC. injury claim numbers from that time.?.


Sure do from day 1 till current 2016 injuries :
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#18 User is offline   INTER 

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Posted 10 January 2018 - 06:23 PM

View PostAlan Thomas, on 10 January 2018 - 05:35 PM, said:

Inter What was the reason for the reviewer to decline jurisdiction?

Under the 1972 & 1982L egislations there is a different procedure which is not under the current review hearing jurisdiction. This means that you could probably still apply under the old jurisdiction as opposed to appealing of the district court.. Perhaps someone with more knowledge and experience in these matters could comment


think it was because it was out of fairway's jurisdiction to issue a decision on said matter.
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#19 User is offline   INTER 

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Posted 10 January 2018 - 06:28 PM

Found it : IT SAID BECAUSE

MR XXXX advised he did not lodge the application earlier as he did not find the relevant
information, from Dr XXXX, until 2015. While that may be relevant, I find that if he disagreed
with the decision at the time, which he advised me he did, the proper course was to challenge
it then.( 91 26 years ago ) I find the reasons for the delay are not sufficient to allow the late application.
The Strengths or Merits of the Case
I make no finding on this point, given my other findings.
Any Prejudice to ACC
I find that, with the length of time passed, ACC would be extremely prejudiced in whether it
could carry out a proper investigation now.

Given the above, I find there are no grounds to accept the late application for review. For this
reason I find that I have no jurisdiction to consider the substantive matter.

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#20 User is offline   Tomcat 

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Posted 10 January 2018 - 08:01 PM

View PostINTER, on 10 January 2018 - 06:28 PM, said:

Found it : IT SAID BECAUSE

MR XXXX advised he did not lodge the application earlier as he did not find the relevant
information, from Dr XXXX, until 2015. While that may be relevant, I find that if he disagreed
with the decision at the time, which he advised me he did, the proper course was to challenge
it then.( 91 26 years ago ) I find the reasons for the delay are not sufficient to allow the late application.
The Strengths or Merits of the Case
I make no finding on this point, given my other findings.
Any Prejudice to ACC
I find that, with the length of time passed, ACC would be extremely prejudiced in whether it
could carry out a proper investigation now.

Given the above, I find there are no grounds to accept the late application for review. For this
reason I find that I have no jurisdiction to consider the substantive matter.



Read this decision ...Posted Image





Decision No. 7 / 2003

IN THE MATTER of the Accident Compensation Act 1982 AND

IN THE MATTER of an appeal pursuant to s107 of the Act

BETWEEN KENNETH PAUL MILLER of Umewera (Ref ACA 88/95)
Appellant

AND ACCIDENT COMPENSATION CORPORATION a body corporate duly constituted under the provisions of the said Act

Respondent


BEFORE THE ACCIDENT COMPENSATION APPEAL AUTHORITY


HEARING at WELLINGTON on 25 October 2002

APPEARANCES/COUNSEL

J M Miller for appellant
A D Barnett for respondent

DECISION

Introduction

(1] The delay in the issue of this Decision is regretted.
[2] The basic issue in this appeal is the cause of the appellant’s incapacity over various periods since 1978.
[3] The appeal concerns a decision of the respondent dated 2 May 1994 which declined to accept an application for late review of a primary decision dated 27 September 1978.
[4] The decision of 27 September 1978 ceased the appellant’s ongoing entitlement to earnings related compensation on the basis that his ongoing incapacity was the result of disease (ankylosing spondylitis) and therefore unrelated to his accidents on 10 June 1977 and 20 August 1974

2

[5] The late application for review in 1993 was prompted by opinion at that time that the appellant did not suffer ankylosing spondylitis.
Background
[6] The respondent’s decision refusing the late application for review, was upheld at review in a decision dated 1 March 1995.
[7] The appellant appealed the review decision.
[8] The appeal was heard by the Accident Compensation Appeal Authority on 25 October 1996 and a decision issued cr29 November 1996.
[9] It was argued before the Accident Compensation Appeal Authority that as the appellant had filed a review application in 1978 and had subsequently withdrawn it in 1979, the later review application in 1994 was of no effect and there was no jurisdiction for the Appeal Authority to determine the matter. This argument was upheld by the Appeal Authority in its decision of 29 November 1996 which issued under No. 251/95.
[10] The appellant appealed the Appeal Authority’s decision to the High Court.
[11] Prior to the High Court bearing, the respondent accepted that the Appeal Authority’s decision regarding jurisdiction was in error, and agreed to the appeal before the High Court being allowed.
[12] The High Court duly issued a decision allowing the appeal and referring the substantive issue (i.e. late application for review of the decision of 27 September 1978 ceasing ongoing entitlements) back to the Appeal Authority for determination.
[13] In summary, therefore the issue in this appeal is whether the respondent erred in refusing the appellant’s late application for review in May of 1994, of a decision ceasing ongoing entitlements made in September 1978.
[14] The principles to be taken into account in considering an out of time application, whether for review or on appeal, were established in McDougall v Accident Compensation Commission NZACR 677 (1983) 4 NZAR 85. That case related to an application for leave to apply for a review out of time, and the Appeal Authority has consistently applied that case to applications for leave to appeal out of time as well. The factors are:
[a] Length of the delay beyond the time allowed;
[b] Reasons for the delay:
[c] Strength or merits of the case; and
[d] Prejudice to the Corporation if the extension is granted.
[15] Overall, however, the Appeal Authority must ask itself whether it would be just to grant the extension sought. Justice must be considered not only from the viewpoint of the appellant, but also from the viewpoint of the respondent.
Length of the Delay
[16] Assuming this case is to be considered as a late application for review, then the 1992 Act is relevant because it preserves provisions of Part IX of the Compensation Act 1982. Section 101(2) of the 1982 Act falls within Part IX
3
and therefore preserves the right of the appellant to lodge a late application for review. It is still within the discretion of the respondent as to whether or not to allow such a late application.
[17] The length of delay from the time the appellant withdrew his application for review in September 1979 until he revived his claim in 1993 is 14 years. This can only be described as inordinate.
[18] In principle the integrity of the administrative and appeal process and the time limits provided by the Act could be significantly compromised if time were extended to allow a late application for review 14 years out of time.
[19] However, by itself, the length of the delay should not prejudice an application if otherwise there is strong merit in the appellant’s claim.
Reasons for the Delay
[20] Two reasons appear to have been given by the appellant for the delay in reviving the claim. First, apparently the appellant was advised by his solicitors that be did not have a claim. Secondly, apparently he was also advised by his solicitors that if he pursued the matter any further, be may have to pay legal costs.
[21] This aspect of the matter was not addressed by Mr Miller. It was submitted for the respondent that where an appellant has been represented in the past, that has usually been found to be a good reason for not allowing a late application.
[22] Further, it was submitted for the respondent that clearly, on the basis of the evidence available at that time, the advice given to the appellant that be did not have a claim, was justified. Therefore, the respondent contends, that is not a compelling reason to allow the late application.
[23] By inference it could be speculated that Mr Miller did not address this aspect of the appeal because he considered the strength or merits of the case to be such as to outweigh any possibility that lack of good reason for delay should be determinative.
Strength or Merits of the Case
[24] In McDougall Casey J noted at p.88 that the strengths and merits of a claim are the most important factor to consider.
[25] In this regard the medical evidence therefore is of considerable importance, combined with a careful consideration of the relevant legal principles
Medical Evidence Available Up to the time of the
Initial Appeal Authority hearing in October1996
[26] It is to be noted although there was quite a considerable amount of medical evidence available at the time, that His Honour Judge Middleton’s decision makes reference to only one medical report. Judge Middleton’s decision focused almost exclusively on the issue of jurisdiction.
[27] The respondent ceased the appellant’s ongoing entitlement to earnings related compensation in September 1978 on the basis of a firm diagnosis by Mr Parke, Orthopaedic Surgeon, in his report of 17 August 1978.


4

[28] Mr Parke found no evidence of any disc lesion and affirmed a diagnosis of ankylosing spondylitis.
[29] Mr Parke’s report of 17 August 1978 acknowledges that the appellant bad suffered back injury on occasions, in September 1974 and in June 1977. However, Mr Parke’s reference to these injuries is uncomplimentary given his asides to them using language such as “his primary gambit’ and “allegedly’.
[30] Mr Parke concluded:
“I have no doubt whatsoever that this man is suffering from ankylosing spondylitis”,
and that,
“l do not consider that his continued incapacity is related to the affect of the temporary aggravation of his back condition which arose as a result of the incident occurring on 10th June 1977. I consider that he has recovered from whatever aggravation of his pre-existing condition occurred as a result of that accident.”
[31] At the request of his solicitors the appellant was examined by Mr King, Orthopaedic Surgeon, on 30 October 1978. subsequently Mr King reviewed the appellant’s medical records and x-rays at Middlemore Hospital and issued a report which is dated 13 November 1978. The two injury incidents described in Mr Parke’s report are likewise touched on in Mr King’s report. He concluded:
think Therefore he probably did make a reasonable recovery following the first strain and the second incident in June of last year can think be regarded only as a temporary aggravating factor. As I have already stated this could not have resulted in the development of ankylosing spondylitis. His current disability is in fact due to the ankylosing spondylitis
[32] On 2 April 1980, Dr Grigor, Rheumatologist, confirmed the diagnosis of ankylosing spondylitis.
[33] Additionally, Mr Barnett noted:
“ln the cimumstances, it is not surprising that the appellant, on the advice of his then solicitors, in 1979 withdrew his application fore review.”
[34] The matter, however, resurfaced in 1993 when Dr Vujcich, General Practitioner, and later Dr Macedo, Rheumatologist, called into question the diagnosis of ankylosing spondylitis. Seemingly it was that opinion which prompted the appellant to apply once again for a review. It is that late application which now is the subject of this appeal.
[35] The appellant was examined by Mr Baylis, Orthopaedic Surgeon, on 1 December 1992. After detailing the appellant’s then condition and the results of physical and x-ray examination, the latter noting,
“ln particular, there is no evidence of ankylosing spondylitis or spondyloarthropathy,”
Mr Baylis concluded his report opinion, parts of which follow:

5

“We have clear clinical and radiological evidence that this man does not have a disease process affecting his back…
There is evidence that this man has hurt his back on several occasions and his neck on at least one occasion. In my view, he is entitled to compensation for both these areas of his spine and l would recommend a 10% disability of total in respect of the neck and in respect of the thoraco-lumbar spine.
I believe he is entitled to significant compensation under section 79 having been led to believe that he has a progressive disease process together with the rejection of his clearly legitimate claim for compensation on the grounds of this disease process.
[36] It is to be noted that on 24 March 1993 the appellant was assessed as having a 19% permanent loss or impairment of bodily function under s.78 and was awarded the maximum of $10,000 under s.79 of the Accident Compensation Act 1982.
[37] At Dr Vujcich’s request the appellant was reviewed by Mr Macedo on 6 January 1994 for his chronic low back pain.
[38] Mr Macedo noted that the appellant’s back pain dated back to pre-1977, with a number of injuries or strains to the back, probably the worst being around 1977 when he injured his back when lifting a very heavy object at work.
[39] The relevant parts of Mr Macedo’s Assessment and Management section of his report follow:
“Mr Miller has a chronic low back pain problem which has been a result of a number of back injuries. There are features that indicate that there has been secondary development of a disorder of pain modulation, and the development of more generalised spinal pain. This is responsible for the more widespread stiffness and pain.
I do not believe that he has ankylosing spondylitis as after such a long period of time of symptoms, that he does not have a typical clinical picture, nor has he developed any positive radiological signs.
It is not uncommon to find that additional stress factors may contribute to the manifestations of pain, and it appeared certain that he has a lot of stress in his life, It is hoped that when he sells up that many of the external stressors may resolve.
Other options for therapy can be the use of Clinical Psychologists experienced in the management of pain to help with pain coping strategies. Alternatively the Pain Management Program at Auckland Hospital. However, realistically after this long period of time it is difficult to imagine him being rehabilitated into a job” (Emphasis by Mr Miller)




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[40] Mr Macedo gave evidence at the initial Appeal Authority hearing and at that stage be continued to have doubts about the diagnosis of ankylosing spondylitis.
[41] Since that bearing, however, and the referral back to the Appeal Authority by the High Court, further medical opinion has been obtained along with a CT scan taken in December 1999.
Medical Evidence Subsequent to the High Court’s Referral
Back to the Appeal Authority
[42] The appellant’s chronic back condition was referred for assessment by Mr Reynolds. a Specialist in Internal Medicine and Rheumatology. Mr Reynolds was asked to consider five questions.
[43] Mr Reynolds’ report of 12 May 1999 was formatted to cover:
[a] The history of events as obtained from the appellant;
[b] The appellant’s current symptomatic and functional state;
[c] Current examination findings;
[d] Review of previous reports;
[e] Conclusions.
[44] The answers to the questions posed for Mr Reynolds are answered in the Conclusion section of his report as follows:
1. What are the current diagnoses?
“Mr Miller has recurring, non specific spinal and soft tissue pain, associated with a reported degree of disability which is out of keeping with the observable locomotor and neurologic findings, and which is associated with symptoms of lethargy, exhaustion, and depression. The presence of calluses on the hands suggests that the actual level of function may be somewhat greater than that reported by Mr Miller. It is very likely (but not certain) that he had inflammatory sacroiliac pain in his 20’s and early 30’s, but there is no good evidence for inflammation from that time onwards.”
2. What is the aetiology of the current diagnoses? “I believe Mr Millers current condition most likely represents chronic illness behaviour deriving from the interaction between his long standing anxiety state and personality traits on the one hand, and previous episodes of both inflammatory and mechanical back pain.”
3. What is the relationship if any of the current diagnoses to the accidents of 1974 and 1977?
“These accidents, not in themselves episodes of major trauma, were among the triggers for the present chronic illness behaviour”
4. What is the current reason for incapacity to work?
“This question has really been answered above. I do not believe that Mr Miller has physical disability of such severity as to prevent him from engaging in some form of gainful employment”
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5. How would I view the diagnosis of ankylosing spondylitis made in 1978? “I believe that the diagnosis was made on reasonable clinical grounds, supported to some extent as noted above by the radiologic findings. The presence of B27 antigen adds some further weight to the diagnosis. Although this antigen occurs in approximately 10% of the Caucasian population in NZ, it occurs in at least 95% of the patients with ankylosing spondytitis. Testing for the B27 antigen is useful in circumstances where there is a moderately high index of suspicion of inflammatory spinal disease, a positive test in those circumstances increasing the probability of that diagnosis.”
[45] The appellant was referred back by his solicitor to Mr Macedo in the context of whether it could be reasonably argued that [the appellants] back pain was caused by the accident/s of August 1974 and the mid-1977”.
[46] In seeking immediately to address that proposition Mr Macedo’s comparatively short report of 16 February 2000 explained:
“ln relation to the current diagnosis of Mr Miller’s back pain, the end result of previous events is that he has a chronic spinal pain syndrome. This of course does not specify etiology in itself, as several factors may be involved in the evolution of a chronic pain disorder. This can include inflammatory conditions of the spine, degenerative conditions of the spine, injuries to the spine, psychological and central peripheral neurogenic influences on chronic pain behaviour.
The diagnoses that we know about now are at the least, and earlier diagnosis of ankylosing spondylitis that has now been substantiated objectively. There have also been discrete injuries recorded, mainly 1974 and 1977, the index accidents, although in Mr Miller’s history there are also other injuries recorded such as in 1983 when he slipped down a bank at work, aggravating his back pain, in 1989 a fall from a ladder, hitting his back against the kitchen table and also in 1993 when he was hit across the back with a broom.
In answering the question as to whether Mr Miller’s back pain was caused by the accidents of 1974 and 1977, the difficulty arises in trying to look at causes of back pain, in isolation from other events.
One could ask the following two questions as to whether one can truly isolate causes:
I) If Mr Miller did not have pre-existing ankylosing spondylitis, could the accidents have eventually resulted in his state of chronic spinal pain.
2) If he did not have any accidents, could his ankylosing spondylitis resulted in the current diagnosis of chronic spinal pain.
In answer to the above questions, because the two conditions in fact exist, it is somewhat speculative to determine which event dominated. The answer in my opinion would have to be affirmative to both questions, in that both ankylosing spondylitis, and the injuries, are both contributions to the evolution of a chronic spinal pain disorder. I believe that one has to acknowledge that chronic spinal
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pain is complex, and while recognising the contributions of both injury and ankylosing spondylitis to this. I would not be able to apportion the relative contribution of each in any sod of quantitative way.
It had been my general impression however from symptoms and clinical findings, that the clinical picture from early to mid-1990s was more that of mechanical and/or non-specific chronic spinal pain, rather then that of ongoing active inflammatory spondylitis. I am not able however to say the same of his clinical presentations through the 1970s and 1980s.”
[47] Finally in a report of 20 March 2001 Mr Reynolds sought, in response to an approach from Mr Barriett, “... to reconsider the question of the cause of (the appellant’s) condition as it was in 1978, rather than as it is now.”
[48] Mr Reynolds’ conclusion was established against background of two unassailable findings:
1. Diagnosis of bilateral sacroiliitis established beyond doubt:
2. No doubt that the appeIlant suffered several discrete injuries, most notably those of 1974 and 1977.
[49] Thereafter followed Mr Reynolds final conclusion in this way:
“The above analysis would therefore suggest that inflammatory disease, specifically bilateral sacroiliitis, was the main cause of chronic symptoms for Mr Miller in the period between 1974 and 1978. There is no doubt that he suffered episodes of mechanical strain to his back during those years, but there is good evidence in the record that on at least some occasions he appeared to recover quickly from the effects of such strain. The weight of evidence would therefore point towards inflammation as the predominant cause of ongoing symptoms and incapacity. It may also be considered that the presence of active inflammation in the sacroiliac joints may have made Mr Miller more susceptible to the effects of mechanical back strain)
[50] In assessing the strength or merits of the appellant’s case by reference to the medical evidence, it is pertinent to note the contrasting nature of such medical evidence over the elongated time frame of this claim.
[51] In ceasing the appellant’s ongoing entitlement to earnings related compensation in September 1978, considerable reliance was placed on the firm diagnosis of Mr Parke, Orthopaedic Surgeon. He concluded, “I have no doubt whatsoever that this man is suffering from ankylosing spondylitis ...” That diagnosis was subsequently and independently confirmed by a Rheumatological Registrar and by Mr King, another Orthopaedic Surgeon.
[52] The contrast to which the Authority refers is provided by Mr Macedo in his report of IS February 2000. He stated, “ankylosing spondylitis, and the injuries, are both contributions to the evolution of a chronic spinal pain disorder”
None of the medical evidence can be assessed in absolute terms. A principled .al of the medical evidence must include the making of a judgment by to the legal principles which have beer settled, particularly those from a consideraton of the definition of personal injury by accident under
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the 1982 Act. That assessment will be developed and refined when the Authority considers whether it would be just to grant the extension sought.
Prejudice to the Respondent
[54] In submitting that it would be unjust to allow a late application, counsel for the respondent argued, “The passage of time means the respondent is prejudiced in comparing the basis of the original diagnosis with the later diagnosis.” Mr Barrett argued “One should not ignore an element of prejudice over the 15 year period of delay especially given the decisive nature of the medical opinion at the relevant time in 1978.”
[55] The Authority does not agree. It tends more to acceptance of the view advanced by Mr Miller, counsel for the appellant, that there would be no significant prejudice to the respondent were the application for extension of time to be granted. The Authority agrees with Mr Miller that there is an abundance of good quality medical evidence covering the majority of the relevant periods which would be of assistance to the respondent. So, too, could the appellant be expected to give some assistance in this regard. As Mr Miller observed, at quite an early point in the consideration of his claim the appellant was ‘frightened off’ by solicitors acting for him on potential liability for costs. The Authority agrees with Mr Miller that it would be “somewhat cruel’ and “aImost like a Bleak House situation” for the appellant to have been advised by his counsel to go all the way to the High Court and then have the Appeal Authority rule: “WelI, it’s too late”
Submissions
[56] In brief summary the principal submissions made by Mr Miller in addressing the medical evidence for the appellant were:
[a] The injuries in 1973. 1974 and 1983 were significant enough to cause a disability as the earlier report of Mr Baylis dated 1 December 1992 noted such injuries and recommended lump sum compensation.
[bl The appellant was granted such compensation for a 19% disability in the respondent’s letter dated 24 March 1993.
[c] The report of Mr Reynolds dated 12 May 1999 paragraph 2 also highlights the fact that “Mr Millers current condition most likely represents chronic illness behaviour deriving from the interaction between his longstanding anxiety state and personality traits on the one hand, and previous episodes of both inflammatory and mechanical back pain.”
[d] Mr Reynolds then goes on to state in paragraph 3 that the accidents in 1974 and 1977 “were among the triggers for the present chronic illness behaviour”
[e] Thus the injuries or accidents were the precipitating factors for the mental consequences and thus come within the definition of personal injury by accident.
[57] Likewise in brief summary, the principal submissions advanced by Mr Barnett on behalf of the respondent were:

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1. The onus of proof is on the appellant.
2. In September 1978 when the respondent made its decision ceasing ongoing entitlements, there was a firm and unequivocal diagnosis of ankylosing spondylitis and a was considered that this, not the prior back strains in 1974 and 1978, was responsible for the ongoing incapacity.
3. The medical opinions obtained subsequent to those given by Mr Parke on 17 August 1978 and Mr King on 13 November 1978 should not be accorded the same weight.
4. Ankylosing spondylitis is a disease condition which can go in and out of rernjsston. The appellant has since 1978 returned to work for some periods. He has also suffered further back strains. This evidence of the appellant’s current complaints is not proof of the cause of his condition in September 1978. In any event the current opinion affirms the diagnosis of disease and cannot say that the back strain in 1977 was a cause.
5. The late application for review is some 15 years out of time. The decision whether or not to accept a late application is discretionary. The discretion to decline the late application was properly exercised. The claim is not established on its merits and the delay has been inordinate.
Justice of the Case
[58] Mr Miller submitted that the appellant’s incapacity arises as the result of personal injury by accident as defined in the 1972 and 1982 Accident Compensation Acts. That definition relevantly provides that:
‘Personal Injury by Accident’— (a) Includes — (i) The physical and mental consequences of any such injury or of the accident: (ii) … (iii) … (iv) … (B) Except as provided in the last preceding paragraph, does not include— (i) … (ii) Damage to the body or mind caused exclusively by disease, infection, or the ageing process:”
[59] By reference to the 1972/1982 definition of personal injury by accident, Mr Miller’s challenge to the integrity of the respondent’s decision to cease payment of earnings related compensation in 1978 is twofold:
[a] The definition includes physical and mental consequences of the injury.
[b] Furtherttore, the definition of personal injury by accident only excludes the appellant from cover if his incapacity is caused exclusively by disease or the ageing process. (Mr Miller’s emphasis)
[60] Turning back then, in the first instance to the earlier medical evidence, Mr Miller ‘at even in 1978 Mr King was of the opinion that the incidence of injury by accident couId have had some influence on the appellant’s situation. Mr King said:
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“… I do not think that the lifting strains either in August of 1974 or twisting type of strain which occurred in June of 1977 could have caused the ankylosIng spondylitis and at most they could have been aggravating factors, i.e. symptoms following the strains could possibly have been more severe Than if the strains had not occurred.”
[61] Against the background of this medical comment the Authority is minded to refer to the “egg shell skull” principle which is a settled tenet of medico-legal jurisprudence. That principle is that the respondent is bound to accept the claimant as it finds him or her to the extent that a person who is peculiarly susceptible to iniury is still entitled to compensation for actual injury, even although a normal person might have suffered no ill effects. On that principle if a claimant has the underlying disease of, as in this case ankylosing spondylitis, but has been either free of symptoms or relatively free of symptoms from that disease prior to an accident and suffers from symptoms after the accident, then the claimant is entitled to be compensated for those problems if the medical evidence establishes that they have been caused, contributed to or accelerated by the accident. It is not always an easy task to identity the problems which may be due to an accident and to distinguish them from the problems which may be due to the underlying disease.
[62] Mr Miller explained that two separate cases have to be kept in mind when discussing underlying disease cases. The Authority accepts that this case is not typical of the first situation, where injury has accelerated the inevitable process of the disease of ankylosing spondylitis. There is no medical evidence to suggest that scenario. In fact the tendency for this disease, on the evidence before the Authority, is that it tends to go into remission.
[63] The second situation comprises incapacity as being a combination of the injury and of the disease and, as Mr Miller has explained, the reports giver by Mr Reynolds indicate the appellant’s incapacity as always having been a combination of the underlying disease and aggravating injuries.
[64] Applying the contemporary medical evidence to the accepted legal principles. when dealing with a combination of disease and injury, the personal injury by accident definition in the 1982 Act must be given effect. Thus unless the medical evidence has established that the appellant’s incapacity is exclusively caused by the disease of ankylosing spondylitis. then he is entitled to continuing cover under the relevant accident compensation legislation.
[65] Mr Barnett argued that the question in issue is whether the incidents in 1974 and/or 1977 were a material cause of incapacity at the time compensation was suspended in September 1978. In emphasising in his view the importance of “rnaterial cause. Mr Barnett amplified by explaining that the trauma in question must be a material cause of substance. As support for this proposition Mr Barnett cited Fowlie V ARCIC (Hansen I, Number AP 50/00. Wellington, 4 October 2000). In the Authority’s view this decision has no application to the appeal presently before him other than for its reference in passing to Finnemore V ARCIC (Beattie DCJ, Number 262/98. Napier 9 December 1998) which concerned dissipation of injury in the face of a pre-existing condition becoming symptomatic.
[66] As further authority for his proposition that the trauma in question must be a material cause of substance, Mr Barnett cited West v Firestone Lyre and Rubber Co. of NZ Limited [1991] NZAR at page 525, third paragraph ending “which is a

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substantial cause” and Atkinson v ARCIC AP 25/00 unreported decision Justice Ellis at Wellington, 5 October 2000 at paragraph 17, “... what must be established is a substantial cause but not necessarily the only cause”. It should be noted that Mr Bamett’s quote from the Firestone decision contains more than a modicum of selectivity. At paragraph 5 on the same page 525, in again referring to the interpretation of s.28 of the 1982 Act by reference to compensation for diseases arising out of employment, the judgment of the Court (of Appeal) delivered by Cooke P observed. “… it is enough that the particular employment had something in it which caused or contributed (Authority’s emphasis) to the disease, ... “ The Authority is constrained to observe that there is a world of difference between the concepts of “substantial cause” and “contribution’.
[67] But in any event the Authority finds the two decisions cited by Mr Bamett are of little practical assistance because essentially they are not even remotely on point. Firestone’s particular focus is on the interpretation of s.28 of the 1982 Act. Atkinson was an appeal under the Accident Rehabilitation and Compensation Insurance Act 1992 against a decision made by the District Court on a point of law. The point of law was whether there need be a causal link between medical misadventure and injury, and burden of proof, if any.
[68] The dichotomy between the “substantially” approach advocated by Mr Barnett and the “exclusively” approach relied upon by Mr Miller, is, as was argued by the latter, largely resolved by reference to the exclusionary provision in the definition of personal injury by accident which only excludes the appellant from cover if his incapacity is due exclusively to disease. In this regard a decision of the District Court in Smith v ACC 271/2000 Beattie DCJ, is of some assistance. The issue in that case, an appeal from a Reviewers decision which upheld a decision of the respondent, suspended entitlements to the appellant on the basis that his current incapacity was no longer caused by the injury for which he bad received cover.
[89] In Smith it is interesting to note that over quite a period of time the relevant medical evidence developed in a manner not dissimilar to the evolution of the medical evidence in the appeal currently before the Authority. There were injuries to the appellant’s back in October of 1984 and a recurrence of severe back pain following another lifting accident in September 1990. The medical evidence as to personal injury by accident was consistent until 2000 when the appellant was referred to another Orthopaedic Surgeon for review. It was on the strength of that Orthopaedic Surgeon’s report and the report of a Neurologist that in August 2000 the respondent advised the appellant that in its opinion his then incapacity was caused by non-injury factors and degenerative changes to his spine.
[70] In seeking a review of that decision reports were sought from a Rheumatologist, another Orthopaedic Surgeon and a Physical and Manipulative Medicine Specialist. In summary the thrust of the reports from these three specialists was that the appellant was still suffering from the effects of the spinal injury which he suffered in March 1984.
[71] The import of the decision in Smith is highly significant on an application of the facts in the appeal before the Authority to the relevant law and legal principles.
[72] Smith the Court noted that the question posed to the Orthopaedic Surgeon opinion was chronic pain syndrome on the basis of diffuse degenerative disease was whether be considered the appellant’s incapacity to be wholly or substantially related to an injury suffered on 8 March 1984, and secondly whether
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incapacity was wholly or substantially (Court’s emphasis) related to non-injury causes. In this regard the Court observed:
“I mention this at the outset because I find that in posing those questions end obtaining those answers the respondent has not posed the correct questions in the particular case of this appellant Although it was not argued before me by counsel for the appellant, I must nevertheless indicate that this appellant is entitled to the legal definition of “personal injury” as was the law at the time he was granted cover back in 1984. That definition is of course the definition which was contained in the 1982 Accident Compensation Act (The relevant definition for the present case states, “the physical and mental consequences of any such injury, or of the accident”). The relevant exclusion in the definition states that personal injury by accident does not include damage to the body or mind caused exclusively’ by disease, infection, or the ageing process.
It is that latter exclusionary provision which requires the injury to be exclusively caused by disease, etc. before cover can be excluded.
Although the respondent correctly dealt with the appellant’s claim in accordance with the provisions of the Accident Insurance Act 1998 at the time it made its decision, nevertheless insofar as the personal injury by accident for which the appellant was entitled to cover is concerned, that personal injury needed to be considered in terms of the definition in the 1982 Act”
[73] The Court’s observations as explained in paragraph 72 above accord in large measure with Mr Miller’s argument as recorded in paragraph 59[b] of this decision. That submission is recorded with approval and is upheld by the Authority.
[74] The concluding section of the submissions made by Mr Miller on behalf of the appellant focused on “mental consequences” by reference to the report of Mr Reynolds dated 12 May 1999. At paragraph 2 on page 9 of his report Mr Reynolds stated:
“I believe Mr Miller’s current condition most likely represents chronic illness behaviour deriving from the interaction between his long standing anxiety state and personality traits on the one hand, and previous episodes of both inflammatory and mechanical back pain.”
[75] In paragraph 3 on the same page of his report Mr Reynolds stated that the accidents in 1974 and 1977 “were among the triggers for the present chronic illness behaviour.”
[76] Thus, Mr Miller argued, the injuries or accidents in 1974 and 1977 were the precipitating factors for the mental consequences and thus come within the definition of personal injury by accident. For this argument Mr Miller placed reliance on the decisions of the District Court in Hewitt 2l7/2001 and O’Meara 216/2001.
[77] In Hewitt the particular issue raised by the appellant was whether she ought to have continuing entitlement for the mental consequences of her personal injury by accident. On 21 September 1986 the appellant suffered an injury to her lower back. She was granted cover under the 1982 Act in respect of that personal injury to her In 1998 a specialist in Occupational Medicine gave an opinion that the was suffering from a severe chronic pain syndrome which probably had
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little to do with any genuine anatomical pathology. On the strength of that opinion the respondent ceased entitlements on the basis that her condition was pain syndrome unconnected with the accident, a decision which was upheld on review.
78] In arguing on appeal from the review decision counsel for the appellant submitted, inter alia, that it was not acceptable for the respondent to disregard the definition in the legislation relating to mental consequences and only to focus on the physical injury.
[79] In allowing the appeal in Hewitt the Court found as a fact and ruled as a matter of law that the appellant was still suffering from the mental consequences of the personal injury by accident for which she was granted cover and was therefore entitled to continue to receive such entitlements under the Act as were directly attributable to those mental consequences.
[80] Similarly in O’Meara the Court found as a fact and ruled as a matter of law that the appellant’s condition of chronic pain syndrome was a consequence of personal injury by accident suffered on 28 March 1989 and as such the appellant was extended an entitlement to continuing compensation.
[81] The Authority’s one reservation in applying Hewitt and O’Meara in this appeal, arises by reference to the judgment of the High Court in ACC v Lukes [1992] NZAR 419, which apparently was not argued in either of the cases cited.
[82] In ACC v Lukes the respondent, L, had been employed as a Rescue Fireman at Auckland Airport for 20 years. Regular training trips in a Zodiac Rescue rubber dinghy frequently caused him back and neck pain. In January 1987, as a result of a particularly rough outing, he suffered back and neck injury and was not able to work as a Rescue Fireman thereafter. His claim for earnings related compensation was originally made on the basis of personal injury by accident. This was declined by the Corporation. The case evolved as it progressed through the Review Officer to the Appeal Authority. The Authority eventually found that L’s incapacity was due to an occupational disease. ACC appealed that finding. It argued that the Authority had no jurisdiction to make such a finding, because ACC had never exercised its exclusive jurisdiction on the issue of occupational disease.
[83] The appeal was allowed on the basis that the exclusive jurisdiction accorded to ACC in s.27(2) to reach a conclusive decision, was not to be circumvented by the Appeal Authority finding a category of personal injury which was not put before the respondent or addressed by it. The finding was not a reversal or modification of the Review Officer’s decision but was the substitution of a completely new conclusion.
[84] In citing ACC v Lukes the Authority does so in an abundance of caution, and he acknowledges that in so doing he may be in error, particularly given that there was no argument on the point. Certainly in this case there was no suggestion in the arguments made on behalf of the appellant, that a different category of personal injury by accident is being proposed. Nevertheless, the first limb of Mr Miller’s challenge to the respondent’s decision is an emphasis on mental consequences of injury as opposed to physical consequences which was an essential ingredient in the equation when the appellant claimed cover arising out of personal injury by accident in 1977.

[85] In the event the Authority finds that allowance of the appeal is not dependent on a finding as to mental consequences.
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[86] In considering the legal propositions it has been held by the Authority, in summary:

1. The delay of 14 years in reviving the claim is inordinate;

2. The reasons for the delay are readily explainable in the context of the human condition;

3. The conclusion is inescapable that there is considerable strength and merit in the appellant’s case. This conclusion follows the Authority’s acceptance of Mr Miller’s argument, on the law, that the definition of personal injury by accident only excludes the appellant from cover if his incapacity is caused exclusively by disease. The Authority has found this not to be the case. It is clear that the appellant’s incapacity has always been a combination of underlying disease and aggravating injury;

4. No significant prejudice exists to preclude the respondent from granting the extension of time required to review its primary decision.

Determination

[87] In allowing the appeal the Authority rejects the respondent’s submission that the medical opinions obtained subsequent to those given by Mr Parke on 11 August 1978 and Mr King on 13 November 1978 should not be accorded the same weight.

[88] The appeal is allowed to the end and intent that cover and entitlements are granted for the appellant’s past and present incapacity.

[89] There will be costs of $1200.



DATED at WELLINGTON this 23rd day of April 2003



(signed)

P J Cartwright




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