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Question on 1982 lumpsum payments focus on Section 79 or Pain & Suffering etc

#1 User is offline   anonymousey 

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Posted 10 July 2018 - 12:15 PM

In another thread I have been discussing some aspects of the 1982 Lumpsum payments with another older member from this same era ...

After a particular posting to another member, I was still had a few questions in mind ... and realised that I am not completely sure about the new Assessment Processes which may be available or apply to some claimants currently. ie Independence Allowances.

I am particularly referring to those claimants who have their ACC Claims dating back nearly 30 years ago & may have deteriorated ... and then additionally sought entitlements with IA processes etc



Please remember at the moment, I am only focusing on SECTION 79 compensation .... I will upload contemporary sections that I find next just for reference purposes ...

Quote


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.

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#2 User is offline   anonymousey 

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Posted 10 July 2018 - 12:15 PM

Quote

377
Independence allowance for personal injury suffered before 1 July 1999

(1)
On the commencement of this section, sections 441 and 442 of the Accident Insurance Act 1998 cease to have effect.

(2)
A person who suffered personal injury before 1 July 1999 is entitled to be assessed for an independence allowance under Part 4 of Schedule 1 of the Accident Insurance Act 1998, irrespective of when the claim for cover for the personal injury was or is lodged, subject to the modifications set out in subsection (3).

(3)
The modifications are that—
(a)
any assessment or reassessment must be done on the basis of whole-person impairment for the combined effect of all injuries suffered before 1 July 1999 for which the person has cover; and
(b}
the percentage of impairment for which any lump sum compensation was received under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982, or both, must be deducted from the percentage of combined whole-person impairment assessed in accordance with paragraph (a); and
(c}
the independence allowance based on the first assessment is payable as from,—
(i)
in the case of a person who has received lump sum compensation under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982, or both, the date of the application for an independence allowance; or
(ii)
in any other case, the later of the date on which the claim for cover was lodged or 1 July 1992.



Quote

55
Transitional limits on eligibility for lump sum entitlements

(1)
A person who suffers mental injury caused by an act to which section 21(1)(c} applies is not entitled to lump sum compensation for permanent impairment under this schedule if the act last occurred before 1 April 2002.

(2)
A person who suffers personal injury caused by a work-related gradual process, disease, or infection in the circumstances described in section 30(2) is not entitled to lump sum compensation for permanent impairment if one of the following dates preceded 1 April 2002:
(a)
the date on which the person last performed the task or was employed in the environment in those circumstances:
(b}
the date on which the person first received treatment for the personal injury as that personal injury:
(c}
the date on which the personal injury first resulted in the person’s incapacity.


(3)
A person who suffers treatment injury or personal injury caused by medical misadventure is not entitled to lump sum compensation for permanent impairment under this schedule if the date of the treatment which caused the personal injury was before 1 April 2002.

(4)
If a person’s eligibility for lump sum compensation for permanent impairment under this schedule is excluded by this clause and the person has suffered personal injury for which the person has cover because of section 36 or section 37 or section 38, Part 4 of the Accident Insurance Act 1998 applies to the person for the purpose of deciding whether the person has an entitlement to an independence allowance.

(5)
This clause overrides sections 36 to 38.
(6)
Subclauses (2), (4), and (5) apply subject to clauses 55A to 55D.



Quote

55A
Certain persons may elect to receive either lump sum compensation or independence allowance: assessment, notification, and election

(1)
The Corporation must, to enable a person to make an election under subclause (4), determine whether the person meets the criteria for entitlement to both lump sum compensation (under clauses 57 to 60) and an independence allowance (under clauses 58 to 60 of Schedule 1 of the Accident Insurance Act 1998).

(2)
However, a determination under subclause (1) is required only if the person—
(a)
suffered a personal injury caused by a work-related gradual process, disease, or infection in the circumstances described in section 30(2); and
(b}
last performed the task or was employed in the environment in those circumstances before 1 April 2002; and
(c}
suffered the personal injury on or after the date on which section 33 of the Injury Prevention, Rehabilitation, and Compensation Amendment Act 2008 came into force.


(3)
The Corporation must, after complying with subclause (1),—
(a)
make a decision (which, to avoid doubt, is to be treated as a single decision) as to whether the person has, for the purposes of an election under subclause (4), an entitlement to both lump sum compensation and an independence allowance; and
(b}
notify the person of its decision, in accordance with section 64, and include with that notification information about—
(i)
the Corporation’s assessment of the person’s degree of whole-person impairment; and
(ii)
the amounts of lump sum compensation and independence allowance that the person would, if he or she elected to receive that compensation or allowance, be entitled to receive; and
(iii)
the Corporation’s estimate of the period for which the person would need to receive an independence allowance for that allowance to equal the value of the lump sum compensation that would be payable to the person, calculated using appropriate actuarial methodology; and

(c}
inform the person—
(i)
that he or she is entitled to elect which of the entitlements he or she wishes to receive; and
(ii)
of the matters specified in subclause (4).


(4)
A person who is assessed as having an entitlement to either lump sum compensation or an independence allowance—
(a)
may, within 60 days of being given notification in accordance with section 64, elect which entitlement he or she wishes to receive; or
(b}
is, if no election is made within 60 days, deemed to have elected to receive an independence allowance.


(5)
An election under subclause (4)(a) must be made in writing to the Corporation.

(6)
Section 37 applies for the purposes of subclause (2)(c}.
(7)
Section 64 applies to a notification by the Corporation under this clause as if the notification were a notice of a decision on a claim.

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#3 User is offline   anonymousey 

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Posted 10 July 2018 - 12:33 PM

So basically my question is how does the new Independent Allowance assessment process manage previous Section 79 lumpsum payments for pain & suffering & other non-economic losses etc

I see that the new contemporary legislation specifically refers to the different section 78 which only applies to permanent loss or impairment of bodily function so this is very clear ... but I am not sure what happens or has happened to the other compensation that was also available under our older legislation


377 [3]{b}
the percentage of impairment for which any lump sum compensation was received under section 119 of the Accident Compensation Act 1972 or section 78 of the Accident Compensation Act 1982, or both, must be deducted from the percentage of combined whole-person impairment assessed in accordance with paragraph (a)


I think that the there may be some provisions within the *combined whole-person impairment* for claimants who are suffering ... so I am just wishing to confirm this please :)

I do have other questions, but they may not be necessary, if I can determine these contemporary IA payments actually do include pain & suffering & other losses types of factors etc

One thing which I also noted in the contemporary legislation was the additional section ... which looks like it excludes treatment injuries from medical misadventure prior to April 2002.
(3)
A person who suffers treatment injury or personal injury caused by medical misadventure is not entitled to lump sum compensation for permanent impairment under this schedule if the date of the treatment which caused the personal injury was before 1 April 2002.


Does anyone know the reason for this perhaps?
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#4 User is offline   INTER 

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Posted 10 July 2018 - 01:07 PM

im under 82 legislation and get zero AS just about each time you have a reassessment you have to have your old percentage taken off so for eg years ago you were paid out 20% lump sum

you have to get over a 30% in a new WPI assessment.

Under your section 79 if you never received your max of $10k I think you can ask for a back dated assessment, BUT have to jump hoops & hurdles to get it under a out of time claim .
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#5 User is offline   doppelganger 

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Posted 10 July 2018 - 01:40 PM

I think that you might be better off and look at section 78.

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.

So with out looking at the assessment one would need to establish the %%%% under section 78 to establish what was paid out on

Here is the schedule 2 of the 1972 Act and the percentages.

Compensation for Permanent Loss or Impairment of Bodily Function
NOTE: For the purposes of section 119 of this Act, when applying the foregoing provisions of this Schedule for
the purpose of assessing permanent loss or impairment of bodily function affecting the hand and its digits, if
multiple digits are involved assessment shall be made both by summating the individual losses specified in the
foregoing provisions of this Schedule, and on the basis specified in subsection (3) of that section in relation to
the permanent loss or impairment of bodily function affecting the hand or lower arm as a whole as a gripping
organ.
In relation to the last-mentioned method of assessment, complete loss of finger/palm grip in all its components
shall be treated as constituting 60% loss of function of the hand, and complete loss of opposition or pincers grip
shall be treated as constituting 40% loss of function of the hand, these figures to be apportioned into four equal
parts for the individual digits.
The higher figure arrived at after assessment by both these methods shall be the figure awarded.
If in the case of injury to a limb or part of a limb it is considered desirable in order to obtain the best functional
result that the limb or portion of the limb be amputated at a more proximal level than the part injured, the
disability shall be assessed as if the injury itself had necessitated the amputation at the more proximal level.
Assessment of Arthrodeses
The following figures are to be used for a sound arthrodesis in the position of optimum function, partial joint
stiffnesses to be proportionally assessed under section 119(3) of this Act.

Assessment of Shortening
Patellectomy
Where there is full extension of the knee and full flexion in the knee with minimal quadriceps thigh muscle
wasting, treat as 15% loss of function of the leg, this figure to be varied in less successful results related to
residual joint stiffness
.......... 11.25%
Excision of Head of Radius
Where full elbow extension and flexion movement is regained with full forearm rotation movement in either
direction, treat as 15% loss of function of the arm, this basic figure to be varied in less successful cases related
to residual joint stiffness
.......... 12%
Excision of Lower End of Ulna Forearm Bone
Where full forearm rotation movements are preserved and the wrist is normal, treat as 10% loss of function of
the lower arm, this figure to be varied in less successful cases related to residual joint stiffness
.......... 7%
Ligamentous Injuries of the Knee Joint with Residual Instability and Including Quadriceps Insufficiency with
Comparable Instability
Multiple
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Posted 10 July 2018 - 02:13 PM

View PostINTER, on 10 July 2018 - 01:07 PM, said:

im under 82 legislation and get zero AS just about each time you have a reassessment you have to have your old percentage taken off so for eg years ago you were paid out 20% lump sum

you have to get over a 30% in a new WPI assessment.

Under your section 79 if you never received your max of $10k I think you can ask for a back dated assessment, BUT have to jump hoops & hurdles to get it under a out of time claim .


Thanks Inter ...I am under the 82 legislation as well ...and also got both of the lump sum payments at the time etc

Like you I also figured it would be a nightmare getting any reassessments done for the physical aspects so have simply not bothered as I have a number of other issues to sort out first etc I also believed that the Section 79 payment for pain & suffering was already maxed out so there would be zero chance of any additional monies as this might be treated as double dipping perhaps?

It was just during a conversation with another member, I was thinking how our POVs might differ and I realised that without having done the IA assessments myself, that I actually do not know the answer ie having avoided the process I never explored that legislation as my head is chokka block with other stuff etc

Until today when I went and opened the webpage, I never even realised that medical misadventure pre 2002 was excluded either Inter ...

Part of the reason why I am exploring a few of these issues is due to last nights thread dialogue in my head ... plus having had alarm bells ring for other *historical events* which ACC are likely digging into perhaps?

Fortunately I have always told the parents & young people I know to always always keep their own records ... but it may be that there are issues here too ie thinking of claims of youngsters who were injured pre 2002 because this is only 16 years ago so they are now adults themselves etc I already know of one young chap currently who is probably going to be left out in the cold due to this stuff sadly Inter ie no LOPE and possibly no IA etc :(
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Posted 10 July 2018 - 02:25 PM

View Postdoppelganger, on 10 July 2018 - 01:40 PM, said:

I think that you might be better off and look at section 78.

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.

So with out looking at the assessment one would need to establish the %%%% under section 78 to establish what was paid out on

Here is the schedule 2 of the 1972 Act and the percentages.

Compensation for Permanent Loss or Impairment of Bodily Function

NOTE: For the purposes of section 119 of this Act, when applying the foregoing provisions of this Schedule for
the purpose of assessing permanent loss or impairment of bodily function affecting the hand and its digits, if
multiple digits are involved assessment shall be made both by summating the individual losses specified in the
foregoing provisions of this Schedule, and on the basis specified in subsection (3) of that section in relation to
the permanent loss or impairment of bodily function affecting the hand or lower arm as a whole as a gripping
organ.

In relation to the last-mentioned method of assessment, complete loss of finger/palm grip in all its components
shall be treated as constituting 60% loss of function of the hand, and complete loss of opposition or pincers grip
shall be treated as constituting 40% loss of function of the hand, these figures to be apportioned into four equal
parts for the individual digits.

The higher figure arrived at after assessment by both these methods shall be the figure awarded.
If in the case of injury to a limb or part of a limb it is considered desirable in order to obtain the best functional result that the limb or portion of the limb be amputated at a more proximal level than the part injured, the disability shall be assessed as if the injury itself had necessitated the amputation at the more proximal level.

Assessment of Arthrodeses
The following figures are to be used for a sound arthrodesis in the position of optimum function, partial joint
stiffnesses to be proportionally assessed under section 119(3) of this Act.

Assessment of Shortening
Patellectomy
Where there is full extension of the knee and full flexion in the knee with minimal quadriceps thigh muscle
wasting, treat as 15% loss of function of the leg, this figure to be varied in less successful results related to
residual joint stiffness.......... 11.25%
Excision of Head of Radius
Where full elbow extension and flexion movement is regained with full forearm rotation movement in either
direction, treat as 15% loss of function of the arm, this basic figure to be varied in less successful cases related to residual joint stiffness .......... 12%
Excision of Lower End of Ulna Forearm Bone
Where full forearm rotation movements are preserved and the wrist is normal, treat as 10% loss of function of
the lower arm, this figure to be varied in less successful cases related to residual joint stiffness...... 7%

Ligamentous Injuries of the Knee Joint with Residual Instability and Including Quadriceps Insufficiency with
Comparable Instability
Multiple



Thank you doppel :)

Your %% figures are basically what I remember from back then too :)

If I remember right there was also some 15% threshold for something too but I cannot find the information material relating to this yet & my head is still in overload here a bit sorry :(

I think if 82 claimants came in under this thresgold (eg like a 7% quantum) they still would have got a lumpsum payment of $$ ... but were classed differently to other claimants who passed the same testing etc I am not sure of the newer 2001-IA claimants have a requirement of 10% as I have seen this mentioned previously ... but I do not know if is a similar thing or not ie they get their $$ or not?

ps hope its okay that I have reformatted your material a little bit so I can read it easier ...
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Posted 10 July 2018 - 10:11 PM

Just updating thread due to finding a courtcase when hunting for something else etc This may be relevant to some claimants &or aspects of this situation which has been relayed to me by family of a young man ...


Malesic v Accident Compensation Corporation [2016] NZACC 54 (29 February 2016)

[3] Up until recently, after further evidence adduced by the appellant was received, the respondent had initially considered the relevant date was 4 September 2009 (although that later changed).
[4] A review was lodged from that decision by the appellant, seeking a revision of the date of injury to the date of the original surgery from which problems had arisen namely 24 April 1997.

[11] This appeal followed a somewhat protracted course, as a result of matters arising at the hearing, and further information coming to hand. The appellant played an active part in this aspect including attending. and speaking at the hearing.
[12] However sadly for her, the law is against her, in terms of what she personally desires namely, that the matter be dealt with as a medical misadventure going back to the original surgery in April 1997.
[13] The combined provisions of ss 34 and 38 mean that the matter is to be dealt with as a treatment injury under the current Act, not medical misadventure under the former Act, and the date of the treatment injury is, as all now agree, not April 1997 or 4 September 1999,but 13 November 1997, for the reasons explained.
[14] Accordingly the appeal is allowed to the extent that the date of the treatment injury is not, as determined by the reviewer, but 13 November 1997. That however does not change the substantive related decision of the reviewer that the suspension of weekly compensation payments was correct, because on neither date was the appellant an earner.

Simple Timeline ...

First application for cover was not made until 2012. Treating hospital lodged, on the appellant’s behalf, the claim form following second surgery dated 17 June 2012.

Original gallbladder surgery on 24 April 1997
First trip to Emergency Department for abdominal pain on 13 November 1997. Years of ongoing pain and discomfort.


The way I read this judgement is that the claimant sought a review on a date of her treatment injury following suspension of weekly compensation payments. It appears that ACC then re-examined her claim for cover and the relevant legislation and confirmed that she was NOT an earner when she had her first operation ...

Quote

(3)
A person who suffers treatment injury or personal injury caused by medical misadventure is not entitled to lump sum compensation for permanent impairment under this schedule if the date of the treatment which caused the personal injury was before 1 April 2002


I am not sure yet but this claimant may also find difficulty with obtaining an Independence Allowance too perhaps?


In another thread, there is a wee bit of information relating to young people suffering an injury and then as an adult having their ERC significantly reduced with follow up medical interventions to less than the 80% of their contemporary earnings [qv Roger McKernan situation].

I am not sure if there is another class of claimants who are invisibly falling into some gaps here and ending up in hardship with virtually zero entitlements being available to them eg young person & treatment injury ...
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Posted 11 July 2018 - 12:10 AM

NB another posting made on this issue but have placed separately FYI


Some fantastic decisions for Victims of Crime with a few interesting comments concerning ACC factors found within them :)

I have placed the complete decision below the correlated BOLDED excerpts FYI. If readers wish to verify all the references within the document please go to the links provided



Quote


A victim v Martin (interim decision) [2009] NZVSCT 8; (2009) 24 CRNZ 218 (11 May 2009)
Last Updated: 30 July 2013

INTERIM DECISION OF JUDGE P A MORAN

Victims’ Special Claims Tribunal

[1] James Timi Martin is a prison inmate. On 26 November 1999 he raped the victim. On 28 February 2001, Potter J. sentenced him to sixteen years imprisonment.

[2] On 4 February 2008 the New Zealand Police agreed to pay Mr Martin compensation in the sum of $1,200.00 to settle a claim that his privacy had been interfered with by the Police. He alleged that the Police had failed to respond to his requests for information and improperly withheld information from him. The compensation has been paid to a Victims’ Special Claims Trust Bank Account.

[3] The victim has been notified of this payment. As a victim of Mr Martin’s offending she now claims damages from Mr Martin, a claim that I must now determine.

Legislative framework – Prisoners’ and Victims’ Claims Act 2005

[4] Where an imprisoned offender recovers compensation from the State for breaches of, or interference with, any right recognised by the New Zealand Bill of Rights Act 1990, the Human Rights Act 1993 or the Privacy Act 1993, that compensation must be paid to the Secretary for Justice. The Secretary must apply it to payment of legal aid charges, outstanding reparation, and any established victims’ claims for compensation. The balance must then be paid into a Victims’ Claims Trust Bank Account. The Secretary must then give notice of that payment to victims of the offender who are invited to lodge their own claims for compensation against
the offender.

[5] A victim may file a claim with the Secretary of the Tribunal within the time specified in the notice if he or she is indeed a victim of the prisoner and has not obtained and is not seeking a judgment in civil proceedings brought in respect of the offending conduct.

[6] The victim’s claim is then served on the offender to afford the offender a reasonable opportunity to make written submissions on it within a prescribed time.

Once the submissions are received, or the time for making them has expired, the Tribunal must determine the victim’s claim. Unless there are exceptional circumstances that make it necessary in the interests of justice for the Tribunal to hear oral submissions from the parties, the victim’s claim must be determined on the papers.4

[7] Before it can order that any amount of money be paid to the victim, the Tribunal must be satisfied on the balance of probabilities:

that the claimant is a victim of the offender;

that the victim has, through or by means of the offence, suffered loss or damage for which he or she has not received, and is not to receive,effective redress;

the claim discloses a cause of action that is, under the general law, one for which damages are, in the particular case, payable.


[8] “General law” is not defined.

[9] If these prerequisites are met, the Tribunal may order that an amount of money be paid to the victim. The matter is discretionary. Moreover, the Tribunal may order payment of an amount of money that the victim and offender agree to, and that the Tribunal considers is reasonable, by way of final settlement of the victim’s
claim.

[10] The Tribunal must determine the amount to be paid to the victim without taking into account in any way the amount actually held in the account of the offender. Whether to order an amount to be paid by way of damages or exemplary damages, and in quantifying such amount, the Tribunal must apply the general law relating to the awarding of damages. Interest may be awarded.

[11] If the amount awarded to the victim is equal to or less than the money in the account, then the award is to be paid in full. If the amount awarded exceeds the money held in the account, then that money is applied in partial satisfaction of the award. The victim may enforce payment of the unsatisfied portion by deduction from any future amounts awarded to the offender as compensation for breach of his or her rights, or it may be recovered as a judgment of the District Court.

[12] Any surplus remaining in the account is to be released to the prisoner but subject to the prior implementation of any out-of-court settlement of an offender’s claim requiring compensation to be withheld to satisfy fines.

The need for the offender to be given effective notice of the victim’s claim.


[13] It is important to note that a victim’s claim for compensation is not restricted to the amount of money held in the Victims’ Claims Trust Bank Account. Compensation awarded to the victim may well exceed the amount in the trust account. Indeed, the Tribunal is directed to have no regard to the amount in the trust account when determining the compensation payable to a victim. The payment of the offender’s compensation into the trust account is simply the trigger that activates the victim’s claim. So the offender’s compensation is potentially a poisoned chalice.

[14] It may be observed that both victims and offenders are unlikely to realise that a victim’s claim may result in an award of damages that far exceeds any sum held in the trust account. That appears to be so in the present case. The victim has been notified that $1200.00 has been paid into the trust account on behalf of Mr Martin and she has been invited to “make a claim against it”. She has made a claim on a form provided for the purpose but does not quantify her claim. In response to that claim, Mr Martin has expressed the wish that the compensation monies of $1200.00 should not go to the victim. So both parties appear to be labouring under the misapprehension that these proceedings are restricted to the sum of $1200.00. For Mr Martin this is, to say the least, unfortunate. The Act provides that he is to be given a reasonable opportunity to make written submissions on the victim’s claim10. Natural justice demands no less. That claim is potentially for tens of thousands of dollars. If Mr Martin does not know this, how can he be said to have had a reasonable opportunity to respond to it?

[15] So the net result is this. Mr Martin has received $1,200.00 compensation for the breach of his privacy rights by the Police. His victim has made a claim against that sum that she does not quantify. Mr Martin has responded to that claim not knowing what she seeks and in the apparent belief that her claim is restricted to
$1,200.00. I have to determine that claim having no regard to the amount in the trust account so Mr Martin is likely to be ordered to pay tens of thousands of dollars, a likelihood of which he has no effective notice. Nor does he know that the claim against him is to be determined according to the “general law relating to the awarding of damages”, a standard that the statute does not define. The Police may have breached his privacy rights but, as matters presently stand, the Tribunal is set to commit an even greater breach of Mr Martin’s rights - a breach of his right to justice.

Every person has the right to the observance of the principles of natural justice by any tribunal, or other public authority, which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law11

[16] Natural justice demands an effective right to be heard. That, in turn, requires a notice of claim that brings home to Mr Martin the nature and extent of the victim’s claim, namely, a claim for damages that is to be assessed having no regard to the sum held in the trust account, a claim to be determined according to “the general law relating to the awarding of damages”, whatever that means.

[17] Subject to certain requirements of the Act, the Tribunal is the master or mistress of its own procedure.12 It is necessary to ensure that the potential for a substantial breach of Mr Martin’s right to justice is remedied. To that end, before the victim’s claim is determined, this will be an interim decision and the Secretary of the Tribunal will be instructed to give Mr Martin further written notice in the terms appended to this interim decision.

What is “the general law relating to the awarding of damages”?

[18] I take it to mean the common law relating to claims for damages for personal injury untrammelled by the prohibition of such claims contained in the Injury Prevention, Rehabilitation and Compensation Act 2001 and its predecessors.

[19] The term “general law” has to be given meaning. The meaning of an enactment must be ascertained from its text and in the light of its purpose.

[20] So what of the text of the Act? Section 46(2) provides that:

The Tribunal must not accept a victim’s claim unless satisfied, on the balance of probabilities, that –

(a) the claimant is a victim of the offender; and

(b} the victim has, through or by means of the offence, suffered injury, loss or damage for which the victim has not received, and is not to receive, effective redress; and

(c} the claim discloses a cause of action that is, under the general law, one for which damages are, in the particular case, payable


[21] The text of section 46(2) seems to recognise circumstances where effective redress that was otherwise available to a victim under the general law, has been denied to the victim by some specific law.

[22] In the case of physical or mental injury, effective redress in the form of lump sum compensation is compromised by the Injury Prevention, Rehabilitation and Compensation Act 2001 and, of relevance to the present case, its predecessor, the Accident Insurance Act 1998. These statutes prohibit claims for damages by victims of sexual violation for mental injury that reaches the threshold of clinically significant behavioural, cognitive or psychological dysfunction. So the text of s46(2), suggests that a claim for damages for personal injury by a victim of sexual violation for which effective redress is denied by statute, is to be accepted by the Tribunal and determined as if the statutory prohibition did not exist.

[23] And what of the purpose of the Prisoners’ and Victims’ Claims Act 2005?

[24] Its apparent purpose is to ensure that compensation payable to a prisoner for breaches of his specified rights is applied to the compensation of the victims of his offending in cases where they would not otherwise have any effective redress. Those claims are not to be inhibited or proscribed by legislation that denies effective redress in the form of lump sum compensation for physical or mental injury.

[25] Moreover, to facilitate such claims, limitation periods prescribed by the Limitation Act 1950 are suspended while the offender is serving a sentence of imprisonment. This is plainly directed at causes of action in tort founded in the common law albeit proscribed by statute.

[26] I conclude that “the general law relating to the awarding of damages” means the common law relating to claims for damages for personal injury untrammelled by the prohibition of such claims contained in the Injury Prevention, Rehabilitation and Compensation Act 2001 and its predecessors. I am fortified by a conclusion to the same effect reached by the Victims, Special Claims Tribunal in H v H16

[27] However, in relation to the victim’s claim, all this may be academic. While she has undoubtedly suffered emotional harm there is no evidence to suggest that it reached the threshold of clinically significant behavioural, cognitive or psychological dysfunction that would see her claim for damages prohibited by the statute. There would appear to be no statutory impediment in the way of her claim for damages.

The offence

[28] That the victim is a victim of the offender, Mr Martin is undisputed. On 14 December 2000 a Rotorua jury found him guilty of raping her. The facts, as I find them to be, are sufficiently recorded in the remarks of Potter J. upon sentencing Mr Martin on 28 February 2001. They are to be treated as conclusive evidence of Mr Martin’s offence:

On 26 November 1999, the victim in this matter was at the Cue Bar on Pukuatua Street, Rotorua. She was drinking and socialising with a couple of people when the prisoner approached her and began talking to her. Both were involved in a conversation, exchanged pleasantries and generally socialised at the bar where they stayed until closing time. The victim then decided to go home and went outside and boarded a taxi. She was followed by the prisoner who invited himself back to her place which the victim reluctantly agreed to. She initially made an attempt to pay for his taxi ride home to his own address when she was dropped off, but he declined this offer, took the change she proposed to leave with the taxi driver for his fare and alighted with her. When they entered the house, the victim gave the prisoner a bottle of beer and was about to turn on the tape deck when the prisoner grabbed her from behind, forced her over a kitchen table and began kissing her. He then grabbed her breasts. The victim made it clear to him she was not interested. He then forced the victim out of the kitchen into her bedroom area where he pushed her over a bed so she was half on the floor, parted her legs, and grabbed her between her legs. During this time the victim tried to kick and punch him and to resist what was happening to her. He then put his penis into the victim’s vagina and had full sexual intercourse. During intercourse he started kissing her breasts. The victim managed to push him off just before he ejaculated. She told him to leave. She rang a taxi. A short time later she returned to the lounge where she found the prisoner attempting to steal her television and video. She went outside to wait for the taxi. She then discovered that he had taken her vehicle and a Mäori carving.

The victim’s claim:

[29] The victim’s claim has been made on a form approved by the Secretary for Justice. Under the heading, “Nature of injury, loss, damage or harm” she has ticked the following boxes:

s37
Physical injury

Emotional harm

Loss or damage to property

Consequential economic loss as a result of loss of, of damage to property.


[30] Under the heading, “Compensation sought” she has ticked the following boxes:

Damages for loss of, or damage to, property

Damages for consequential economic loss as a result of loss of, or damage to, property

Damages for emotional harm resulting from loss of, or damage to property

No claim is made for exemplary damages. None of the categories of damages claimed are quantified.


[31] In a space provided for reasons to be given for a wish to make oral submissions, the victim has written:

Had to sell home at a loss.

No ACC available to rape victims available between 1991 - 2001


[32] The claim form is deficient. The section 20 notice invited victims to make claims “against the $1,200.00” paid into the trust account. While this is strictly correct, it is misleading. It creates the impression that victims’ claims are restricted to the sum in the trust account. The claim form does nothing to dispel this. It is not surprising, therefore, that the victim did not quantify her claim. The section 20 notice and the claim form should both make it clear that victims claims are not restricted to the amount in the trust account and are to be determined without taking that amount into account in any way.

[33] Moreover, the claim form is deficient in that it confines claims for damages for emotional harm to such harm “resulting from loss of, or damage to, property”. But the law has long recognised claims for damages for emotional harm arising from an assault and, in relation to rape, it is emotional distress that is invariably the most significant form of harm suffered by a victim.

It seems clear that, in respect of an assault, damages can be awarded not only in respect of physical injury, but also in respect of insult which may arise from interference with the person and the injury to his feelings, that is, the indignity, mental suffering, disgrace and humiliation that may be caused.


[34] Despite the shortcomings in the victim’s claim (for which she is in no way responsible), I intend to determine it as a claim for compensation for mental injury in the form of psychological or emotional harm occasioned by the rape. That should do justice to her claim without the need to consider the other heads of claim for which, in any event, there is little or no evidential foundation.

The evidence of psychological or emotional harm


[35] The victim was raped. She was raped by a man with whom she had been socialising and who invited himself back to her home. He forced himself on her violently. She vainly put up a struggle, albeit with limited noise because her children were asleep in the next room (a fact extracted from the notes of evidence by the sentencing Judge). To add insult to injury he then attempted to steal her television and video and stole her motor car and a Mäori carving that was of great significance to her

[36] With regard to the effect of all this on the victim, a victim impact report obtained at the time of sentencing records shame and distress so great that she had to withdraw from her employment. Her GP prescribed Prozac to help her overcome the effects of the attack. A sense of insecurity that followed rendered her incapable of normal interaction with people making it difficult to undertake such routine tasks as a trip to the supermarket. Her condition was exacerbated by the inability of her children to come to terms with the rape of their mother, especially her 17 year old son who was present in the house and slept through the rape. Her sense of insecurity in her own home was such that she was unable to sleep in her bedroom where the rape occurred and her son’s father came and stayed in the house for three months as a comfort to her and her children. In the months that followed she began to drink heavily, put on weight and became severely depressed.

[37] In her sentencing remarks Potter J records that, the effect on the victim is “significant” and the long-term implications “incalculable”.

[38] So what sum should I award the victim to compensate her for the emotional harm inflicted on her by Mr Martin?

Quantum

[39] I will defer determining the amount of the award until Mr Martin has had the opportunity to respond to the further notice appended to this interim decision.

P A Moran
Victim’s Special Claims Tribunal
APPENDIX

The Secretary of the Tribunal is to give Mr Martin further written notice as follows:

The victim’s claim is for an indeterminate sum by way of damages for property loss, consequential losses and damages for physical and mental injury.

Her claim will be confined to a claim for damages to compensate her for emotional harm caused by her sexual violation.

Her claim is to be determined according to the general law without regard to the Accident Insurance Act 1998 that inhibits claims for damages for personal injury

Compensation will be determined without taking into account in any way the $1,200.00 actually held in the Victims’ Claims Trust Bank Account and is likely to amount to many thousands of dollars

To the extent that the compensation awarded to the victim’s exceeds the $1,200.00 in the Victims’ Claims Trust Bank Account, the excess may be recovered from him as a judgment of the Court

Mr Martin may wish to seek legal advice and, to that end, apply for legal aid.

Any further submissions that he may wish to make are to be sent to the Secretary of the Tribunal in writing within 60 days



Quote


A victim v Martin (final decision) [2009] NZVSCT 3; M v M; (2009) 24 CRNZ 227 (3 June 2009)
Last Updated: 30 July 2013


FINAL DECISION OF JUDGE P A MORAN

Victims’ Special Claims Tribunal
MR MARTIN’S FURTHER SUBMISSIONS:

[1] Mr Martin has responded to the invitation to file further submissions contained in the appendix to my interim decision of 11 May 2009. He protests his innocence of the rape charge and has given me the material that has been gathered with a view to establishing that he has been wrongly convicted. He repeats his objection to the victim’s receiving any part of the $1,200 compensation held in the Victims’ Claims Trust Bank Account. However, I must proceed to assess the victim’s claim for damages on the basis that she was indeed raped by Mr Martin. It is not open to me to question the jury’s verdict.

[2] Mr Martin submits that the victim suffered no property loss nor any consequential economic loss as a result of loss of or damage to property.[**qv loss of belongings & lower house sale not acknowledged] But I have decided against making any award under these heads of claim. I have preferred to confine the victim’s claim to compensation for emotional or psychological harm suffered by her as a result of the rape.

3] Mr Martin questions whether the victim had to withdraw from her employment as a teacher’s aid as a consequence of her shame and distress because she says that she is still employed as a teacher’s aid. But the employment that she felt compelled to withdraw from was as a cleaner at tourist complex, not as a teacher’s aid.

[4] Finally, Mr Martin submits that he would be happy to donate the $1,200 to the Children’s Starship Hospital rather than see it go to the victim. This rather misses the point. This is not a case about the $1,200 compensation. Because Mr Martin has succeeded in a claim for compensation for breach of his right not to have information withheld from him by the Police, the Victims’ Claims Act 2005 requires that compensation to be paid into a trust account so that any victims of Mr Martin’s crimes can lodge their own claims to compensation against him. I have to decide whether to award his victim compensation and, if so, how much. The decision on “how much”, has to be made without having any regard to the amount actually held in the trust account and without any regard for Mr Martin’s ability to pay it, (and without, I may say, any adequate opportunity for Mr Martin to be represented and heard). Once the award is made, the money in the trust account has to be paid towards satisfying the victim’s award. If the amount in the trust account is insufficient to satisfy the victim’s award then the victim can pursue Mr Martin through the Courts for the unpaid balance. If this all appears to be an unjust outcome to Mr Martin’s successful claim for compensation against the Police then that is just too bad. This is the inevitable outcome legislated for by the Victims’ Claims Act 2005.

AMOUNT OF THE AWARD

[5] The amount to be paid to the victim is to be assessed without taking into account in any way the fact that only $1,200 is held in the Victims’ Special Claims Trust Bank Account. Moreover, in quantifying that amount, I must apply the general law relating to the awarding of damages. At common law, compensatory damages are assessed without regard to the means of the defendant to pay them. The fact that the defendant may have little or no money is irrelevant. While reparation under the Sentencing Act 2002 should not be awarded where that would occasion undue hardship to the offender, the same is not true of an award of compensatory damages. Reparation falls within the criminal justice paradigm where punishment and rehabilitation of the offender are the focus of the Criminal Court’s attention. Damages for actionable injury fall within the civil paradigm where the private function of compensating the claimant for loss or injury suffered is the focus of the Civil Court’s attention.

[6] Awards of damages made in similar cases in other jurisdictions are of little assistance, and little is to be gained from the level of lump sums allowed for pain and suffering under accident compensation legislation.

Determination of claims for pain and suffering and loss of amenity or, as the latter often was called, loss of enjoyment of life, was a familiar feature of personal injury litigation 30 years ago before accident compensation legislation. In those former days, awards under this heading in reality were largely controlled by comparisons with other jury awards in like cases. The latter were plentiful, continually updated and could safely be taken as representing fairness and community expectations. Claims of this character have virtually died out since....Purchasing power of money and social conditions vary too much between countries for automatic cross-border applications. Nor do I gain much help from the level of lump sums allowed for pain and suffering under original accident compensation legislation, which were a special and politically bargained entity...



Brickell v Attorney General (2000) 1 NZELR 202 McGechan J at para.[143]


[7] In Brickell the plaintiff was a police video producer who was exposed to a number of horrific crime scenes that he was required to film and edit for evidential and educational purposes. He was awarded $75,000 for pain and suffering and loss of amenity.

[8] In L v Robinson Chisholm J adopted what was said in Brickell, and awarded $50,000 to the patient of a psychotherapist who admitted gross professional misconduct by engaging in sexual activity with a patient whom he was counselling for sexual abuse. His Honour said that difficulty in assessing damages must not deter the Courts from making the best assessment possible on the available evidence while keeping in mind that, while the type of damage for which the compensation is awarded is real, a sense of proportion must be maintained.

[9] Finally, in relation to the emotional harm suffered by rape victims generally, I adopt the following from the Canadian case of Jane Doe v Metropolitan Toronto (Municipality) Commissioners of Police

Rape is unlike any other sort of injury incurred by accident or neglect. Survivors of rape must bear social stigmatization (sic) which accident victims do not. Rape is about sex, it is about anger, it is about power, and it is about control. It is, in the words of Dr Peter Jaffe, “an overwhelming life event”. It is a form of violence intended to create terror, to dominate, to control and to humiliate. It is an act of hostility and aggression. Forced sexual intercourse is inherently violent and profoundly degrading.


[10] In relation to this rape victim in particular, I repeat what I said at paras [36] and [37]
of my interim decision:

With regard to the effect of all this on [the victim], a victim impact report obtained at the time of sentencing records shame and distress so great that she had to withdraw from her employment. Her GP prescribed Prozac to help her overcome the effects of the attack. A sense of insecurity that followed rendered her incapable of normal interaction with people making it difficult to undertake such routine tasks as a trip to the supermarket. Her condition was exacerbated by the inability of her children to come to terms with the rape of their mother, especially her 17 year old son who was present in the house and slept through the rape. Her sense of insecurity in her own home was such that she was unable to sleep in her bedroom where the rape occurred and her son’s father came and stayed in the house for three months as a comfort to her and her children. In the months that followed she began to drink heavily, put on weight and became severely depressed.



[11] In her sentencing remarks Potter J records that, the effect on the victim is “significant” and the long-term implications “incalculable”.

[12] Doing the best I can on the evidence available I order Mr Martin to pay the victim the sum of $20,000.00 by way of compensation for emotional harm.


P A Moran

This post has been edited by anonymousey: 11 July 2018 - 01:50 PM

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#10 User is offline   Alan Thomas 

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Posted 11 July 2018 - 11:59 AM

View Postanonymousey, on 10 July 2018 - 12:15 PM, said:

In another thread I have been discussing some aspects of the 1982 Lumpsum payments with another older member from this same era ...

After a particular posting to another member, I was still had a few questions in mind ... and realised that I am not completely sure about the new Assessment Processes which may be available or apply to some claimants currently. ie Independence Allowances.

I am particularly referring to those claimants who have their ACC Claims dating back nearly 30 years ago & may have deteriorated ... and then additionally sought entitlements with IA processes etc



Please remember at the moment, I am only focusing on SECTION 79 compensation .... I will upload contemporary sections that I find next just for reference purposes ...



The topic title
Question on 1982 lumpsum payments
focus on Section 79 or Pain & Suffering etc

What was your question?
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#11 User is offline   doppelganger 

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Posted 11 July 2018 - 12:53 PM

View Postanonymousey, on 10 July 2018 - 02:25 PM, said:

Thank you doppel :)/>

Your %% figures are basically what I remember from back then too :)/>

If I remember right there was also some 15% threshold for something too but I cannot find the information material relating to this yet & my head is still in overload here a bit sorry :(/>

I think if 82 claimants came in under this thresgold (eg like a 7% quantum) they still would have got a lumpsum payment of $$ ... but were classed differently to other claimants who passed the same testing etc I am not sure of the newer 2001-IA claimants have a requirement of 10% as I have seen this mentioned previously ... but I do not know if is a similar thing or not ie they get their $$ or not?

ps hope its okay that I have reformatted your material a little bit so I can read it easier ...



Section 78

Quote

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.

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#12 User is offline   spacefish 

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Posted 11 July 2018 - 01:06 PM

So would "aggregate assessment " mean a grouping of similar claims - or a grouping of assessments (which could also include for separate claims)?

Interesting topic - thanks!

I claimed and received under s78 and s79 but that was some years ago now. I want a reassessment and do believe I would receive a % increase that would be worthwhile pursuing. Jan Reeves was my psych assessor, I was young and unsupported at the time.

Problem is, I also don't believe I have any of the paper work including claim numbers and I bet ACC dropped them years ago.

Hi everyone, first post. Posted Image
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#13 User is offline   anonymousey 

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Posted 11 July 2018 - 02:02 PM

View PostAlan Thomas, on 11 July 2018 - 11:59 AM, said:

The topic title
Question on 1982 lumpsum payments
focus on Section 79 or Pain & Suffering etc

What was your question?


I wished to know if this specific payment was reassessed or included in subsequent Independent Allowance evaluations Alan ...

To illustrate my POV, we both have had this maximum compensation payment...

It was likely provided for pain with our qualifying injury and other possible suffering ...

Therefore I am wondering if either of us can ever receive another cent for potentially having ongoing pain complaints with our qualifying injury ie a second bite of the apple etc

I have used this illustration specifically because I am trying to understand this new IA process and how it may help new claimants ..or not etc

As both of us are NOT new claimants for this compensation entitlement and we have both banked our monies ... I have only figured out that we would likely be treated as transitional claims for a new assessment so far ... and that this means we might technically get a very small second chance at another lumpsum payout for pain & suffering perhaps?

I am also trying to wade through this stuff to help young people who are being excluded from compensation payments due to some potential loopholes eg the Malesic case just uploaded has had ERC stopped but I am not yet sure of age & IA questions in there etc
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#14 User is offline   anonymousey 

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Posted 11 July 2018 - 02:03 PM

View Postspacefish, on 11 July 2018 - 01:06 PM, said:

So would "aggregate assessment " mean a grouping of similar claims - or a grouping of assessments (which could also include for separate claims)?

Interesting topic - thanks!

I claimed and received under s78 and s79 but that was some years ago now. I want a reassessment and do believe I would receive a % increase that would be worthwhile pursuing. Jan Reeves was my psych assessor, I was young and unsupported at the time.

Problem is, I also don't believe I have any of the paper work including claim numbers and I bet ACC dropped them years ago.

Hi everyone, first post. Posted Image



Welcome spacefish and great to brainstorm with you too :)

Yep kinda looks like we are may be in the same situation too :)

I also got both payments back then ...and have occasionally thought about reassessment but not gone there yet meself as various other bridges still to cross etc etc But I do believe that ACC should have all your file records. They have archive warehouses and all your hardcopy records should be still kept there as well as their digital ones which may be only the bits & pieces etc Mind you I have only all my 1982 Act or claim records but this is mostly because I havent dug into any of my 1974 Act or those claim records etc...

I do think that the *aggregate* assessment would include ALL injuries and ALL claims as I am sure this must be the key to a *whole person* examination by ACC ...but I have seen stories where the hard bit is when ACC start dissecting the numbers to decide what is theirs ...& what is not perhaps? I have memory of being outraged because a young adult claimant was having strife because ACC decided genetics and parental lifestyle were reason to reduce entitlements ...but my head is a bit in overload at the moment and those circuits about what happened not sparking today sorry ...

Bottomline is that I definitely think Mini and some other members like doppel would be the folks with most insight & experience with this new Independence Allowance system ... and then others will possibly have these transitional factors well sussed etc

My interest at present is because I an trying to find out information to help another young person. Unfortunately, their claim is with the current legislation as they are only 22 I think and were injured when 13years old. They have had zero compensation from ACC and it has been a huge battle for him to get some essential surgery lined up & its only because the hospital got involved with ACC I think. Obviously as a teenager he was & still is out of his depth with ACC ... and his parents much the same unfortunately ...
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#15 User is offline   Alan Thomas 

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Posted 11 July 2018 - 02:04 PM

View Postspacefish, on 11 July 2018 - 01:06 PM, said:

So would "aggregate assessment " mean a grouping of similar claims - or a grouping of assessments (which could also include for separate claims)?

Interesting topic - thanks!

I claimed and received under s78 and s79 but that was some years ago now. I want a reassessment and do believe I would receive a % increase that would be worthwhile pursuing. Jan Reeves was my psych assessor, I was young and unsupported at the time.

Problem is, I also don't believe I have any of the paper work including claim numbers and I bet ACC dropped them years ago.

Hi everyone, first post. Posted Image


The calculation is not an aggregate but rather a total. For example if there are numerous injuries resulting in multiple damaged elements then it is the total level of disadvantage that the payment is to be made on.
Obviously a psychological assessor is not permitted to assess orthopaedic problems, not even pain.

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#16 User is offline   anonymousey 

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Posted 11 July 2018 - 02:06 PM

View Postdoppelganger, on 11 July 2018 - 12:53 PM, said:

Section 78

Quote

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.





Thank you doppel :)

For some reason I had 15% threshold in my brain....

Not so much as the Corportation saving $850 by not paying out ... but more to do with something else ... and I guess every time I see Alan voice his 14.5% result this is the *issue* he is also referring to perhaps?

Mind you I still do not know if Alan accepted the $2465 or not yet because he didnt accept this money or not etc. Sorry I cant even remember if I was paid automatically to my bank account &or yep am clueless about the numbers back in those days of how many people refused the Section 78 monies or refunded them etc :wacko:
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#17 User is offline   Alan Thomas 

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Posted 11 July 2018 - 02:07 PM

View Postanonymousey, on 11 July 2018 - 02:02 PM, said:

I wished to know if this specific payment was reassessed or included in subsequent Independent Allowance evaluations Alan ...

To illustrate my POV, we both have had this maximum compensation payment...

It was likely provided for pain with our qualifying injury and other possible suffering ...

Therefore I am wondering if either of us can ever receive another cent for potentially having ongoing pain complaints with our qualifying injury ie a second bite of the apple etc

I have used this illustration specifically because I am trying to understand this new IA process and how it may help new claimants ..or not etc

As both of us are NOT new claimants for this compensation entitlement and we have both banked our monies ... I have only figured out that we would likely be treated as transitional claims for a new assessment so far ... and that this means we might technically get a very small second chance at another lumpsum payout for pain & suffering perhaps?

I am also trying to wade through this stuff to help young people who are being excluded from compensation payments due to some potential loopholes eg the Malesic case just uploaded has had ERC stopped but I am not yet sure of age & IA questions in there etc


With the transition from the 1982 legislation to the 1992 legislation whereby there was the doing away with an old entitlement scheme replaced with a new one we were sent letters to choose whether we wanted to be assessed under the old scheme and receive a lump sum or the new scheme and get weekly payments. I would have assumed that if there was a maximum payment paid out there would be no more Apple for your proverbial bite.

However the ACC has been directed to acquire for the record qualified information from authorised assessors to document this information and places in my files given the fact that they have challenged the information I wish they are made that decision of 100% payment

Quite obviously those with a new claim are not concerned with these old schemes.
I invested my lump sum into companies so as to achieve an investment which in turn would be paying out for the rest of the existence of the company thus providing for myself in an ongoing manner. Others I note have frittered their lump sums away until they have nothing left but their pain and suffering.
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#18 User is offline   anonymousey 

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Posted 11 July 2018 - 02:15 PM

View PostAlan Thomas, on 11 July 2018 - 02:04 PM, said:

The calculation is not an aggregate but rather a total. For example if there are numerous injuries resulting in multiple damaged elements then it is the total level of disadvantage that the payment is to be made on.
Obviously a psychological assessor is not permitted to assess orthopaedic problems, not even pain.


This is not how I understand the Independent Allowance Assessors are operating Alan .... but Mini and others will know ...I say this because both of us have never been through this yet AFAIK ...

However my POV is that I would consider the IA Experts as being able to review the whole person as well enquire into all of their historical information ... and if need be request additional material from their colleagues etc

I do think that it would be desirable that the IA Expert Assessor has a background in the particular field most related to the dominant qualifying injury Alan ... but I do not think this is compulsory ...and simply by the nature of the assessment involving multiple injuries and pain discussions ... I can imagine in such a small country this could get a bit more tricky IMHO ...
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#19 User is offline   anonymousey 

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Posted 11 July 2018 - 02:30 PM

View PostAlan Thomas, on 11 July 2018 - 02:07 PM, said:

With the transition from the 1982 legislation to the 1992 legislation whereby there was the doing away with an old entitlement scheme replaced with a new one we were sent letters to choose whether we wanted to be assessed under the old scheme and receive a lump sum or the new scheme and get weekly payments. I would have assumed that if there was a maximum payment paid out there would be no more Apple for your proverbial bite.


Correct so we BOTH got the MAXIMUM payments under Section 79 Alan.

View PostAlan Thomas, on 11 July 2018 - 02:07 PM, said:

However the ACC has been directed to acquire for the record qualified information from authorised assessors to document this information and places in my files given the fact that they have challenged the information I wish they are made that decision of 100% payment


This is not making sense to me Alan ...

You got 100% for one lumpsum ... or $10,000 banked ...

Also it appears to me that ACC are very content with the other medical information they hold in regards to your claim. But as I say I still do not know if you accepted this $2465 back then or not etc

However as you got the maximum back then for pain .. so I am not sure if you would get any recognition for continuing pain today ...or even if you reinjured the same wrist dramatically tomorrow ... the difficulty I see is that pain has already been fully compensated by ACC for you etc


View PostAlan Thomas, on 11 July 2018 - 02:07 PM, said:

Quite obviously those with a new claim are not concerned with these old schemes.
I invested my lump sum into companies so as to achieve an investment which in turn would be paying out for the rest of the existence of the company thus providing for myself in an ongoing manner. Others I note have frittered their lump sums away until they have nothing left but their pain and suffering.


This is actually what I think you did too Alan...

I also think many claimants used their lump sum for improving their daily wellbeing. I also think very few claimants would have even considered such a high risk gamble like you did IMHO. Basically if they recognised they were permanently injured then any wishful thinking would have probably been discouraged by others IRL etc etc

However you appear to have been very fortunate that your investment of $10,000 was inalienable and the Recievers were unable to touch it perhaps? I am referring here to your bankruptcy with $350,000 here mostly because the timelines seem to be so close to each other back then etc

However I do agree that NEW CLAIMANTS will be under the new schemes Alan.

My interest is INJURED CHILD CLAIMANTS who never made claims under the old scheme ... who are adults now ... and therefore under the new scheme etc
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#20 User is offline   anonymousey 

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Posted 11 July 2018 - 02:56 PM

View Postanonymousey, on 11 July 2018 - 12:10 AM, said:

Some fantastic decisions for Victims of Crime with a few interesting comments concerning ACC factors found within them :)

I have placed the complete decision below the correlated BOLDED excerpts FYI. If readers wish to verify all the references within the document please go to the links provided


Sorry I have just realised there is a missing zero from the Victims quantum :(

I still think this is a great judgement which may help more folks down the line though ... especially with the badguy being stopped from such dreadful revictimisation games etc

Just still feeling today that may there may still be a need for advocacy to walk a few more hard miles in order get a few extra bits to assist innocents &or truly recognise all victim rights perhaps?

Certainly while the Judge granted a token payment of $K20 and may have specifically chosen to not covere this victims actual losses of property and the family house offloading ie the crimescene ... but there may still be some *difficulties* when victims are being compared by others ... to cases which may also involve a different kind of trauma &or employment problems or other malpractice issues IMHO :(
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