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Reinstatement of Weekly Conpensation

#1 User is offline   Sammy5570 

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Posted 18 November 2019 - 10:52 AM

Hi there
Looking for advice... I've been a paraplegic for over 30 years, following accident. I was on weekly comp for an extended period of time after the accident, but eventually retrained and returned to work, albeit part time now. I receive weekly comp to make up the hours I don't work.
However, work is getting too hard to manage at all, and it looks like i'll be medically retired, at the recommendation and support of my GP, due to accident related issues. does anyone know if I just go straight back on weekly comp, or if there is a different process.
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#2 User is offline   Alan Thomas 

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Posted 18 November 2019 - 11:44 AM

View PostSammy5570, on 18 November 2019 - 10:52 AM, said:

Hi there
Looking for advice... I've been a paraplegic for over 30 years, following accident. I was on weekly comp for an extended period of time after the accident, but eventually retrained and returned to work, albeit part time now. I receive weekly comp to make up the hours I don't work.
However, work is getting too hard to manage at all, and it looks like i'll be medically retired, at the recommendation and support of my GP, due to accident related issues. does anyone know if I just go straight back on weekly comp, or if there is a different process.


As you come under the 1982 legislation the ACC will have been required to determine you were permanently incapacitated to return to preinjury occupation. This means that you are already permanently medically retired so a new decision does not need to be made.

The only issue at hand is one of abatement of earnings.

Permanent disability to return to your preinjury occupation means that the ACC needed to calculate 80% of what your earnings might've been had you not had the accident as opposed to 80% of your historical earnings. For example if you are on a career path where it would be projected your income would increase in ACC would have had to pay 80% of that.


The operational manual of the ACC determined the abatement earnings to be based on a scaled reduction so that the more that you earn the greater the percentage they would deduct up until a one-to-one ratio once you start getting close to original earnings.

All you need to do is simply notify the ACC that you are no longer earning and that they calculate your earnings compensation based on your predicted earnings.

It is probably a good time to ask the ACC to provide you with a full account of the way in which your earnings capacity in a new occupation has affected your compensation and that they should give you a full accounting starting with the foundation decision under section 60 together with the mode of calculations for the abatement of earnings.


I trust this is helpful.

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#3 User is offline   Sammy5570 

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Posted 07 April 2020 - 10:40 AM

Hello again,
Well I did get retired and am now on weekly compensation. However, they have calculated it based on earnings from 2012, when I started working part time, rather than on my annual salary at the time I stopped working altogether. As I have worked hard and had promotion in that 8 year period, they are assessing me on almost 30K less than my annual salary at the time I left.... surely this is not right???

I would have thought they would have to calculate based on 80% of my annual salary for the past 52 weeks, and not take into account the part time top up that they were already paying me?? surely they can't say my salary was less, because they paid some of it??
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#4 User is offline   Alan Thomas 

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Posted 07 April 2020 - 11:57 AM

View PostSammy5570, on 07 April 2020 - 10:40 AM, said:

Hello again,
Well I did get retired and am now on weekly compensation. However, they have calculated it based on earnings from 2012, when I started working part time, rather than on my annual salary at the time I stopped working altogether. As I have worked hard and had promotion in that 8 year period, they are assessing me on almost 30K less than my annual salary at the time I left.... surely this is not right???

I would have thought they would have to calculate based on 80% of my annual salary for the past 52 weeks, and not take into account the part time top up that they were already paying me?? surely they can't say my salary was less, because they paid some of it??


The only thing that you can think is what the legislation at the time of your injury prescribed as being your entitlement. Anything else is irrelevant and as such the decision made by the ACC in your case should be challenged.

I am also in the same category as yourself and like you ACC have also disregarded relevant earnings information and gone to other people that had nothing whatsoever to do with my earnings in order to have those people provide them with what they want to be information to make the calculation. You are suffering from the same gross disregard of the law to the extent that it does seem the ACC are committing wholesale insurance fraud against injured people

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#5 User is offline   Sammy5570 

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Posted 07 April 2020 - 12:04 PM

View PostAlan Thomas, on 18 November 2019 - 11:44 AM, said:

As you come under the 1982 legislation the ACC will have been required to determine you were permanently incapacitated to return to preinjury occupation. This means that you are already permanently medically retired so a new decision does not need to be made.

The only issue at hand is one of abatement of earnings.

Permanent disability to return to your preinjury occupation means that the ACC needed to calculate 80% of what your earnings might've been had you not had the accident as opposed to 80% of your historical earnings. For example if you are on a career path where it would be projected your income would increase in ACC would have had to pay 80% of that.


The operational manual of the ACC determined the abatement earnings to be based on a scaled reduction so that the more that you earn the greater the percentage they would deduct up until a one-to-one ratio once you start getting close to original earnings.

All you need to do is simply notify the ACC that you are no longer earning and that they calculate your earnings compensation based on your predicted earnings.

It is probably a good time to ask the ACC to provide you with a full account of the way in which your earnings capacity in a new occupation has affected your compensation and that they should give you a full accounting starting with the foundation decision under section 60 together with the mode of calculations for the abatement of earnings.


I trust this is helpful.



Hello again,
Well I did get retired and am now on weekly compensation. However, they have calculated it based on earnings from 2012, when I started working part time, rather than on my annual salary at the time I stopped working altogether. As I have worked hard and had promotion in that 8 year period, they are assessing me on almost 30K less than my annual salary at the time I left.... surely this is not right???

I would have thought they would have to calculate based on 80% of my annual salary for the past 52 weeks, and not take into account the part time top up that they were already paying me?? surely they can't say my salary was less, because they paid some of it??
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#6 User is offline   Alan Thomas 

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Posted 07 April 2020 - 01:29 PM

View PostSammy5570, on 07 April 2020 - 12:04 PM, said:

Hello again,
Well I did get retired and am now on weekly compensation. However, they have calculated it based on earnings from 2012, when I started working part time, rather than on my annual salary at the time I stopped working altogether. As I have worked hard and had promotion in that 8 year period, they are assessing me on almost 30K less than my annual salary at the time I left.... surely this is not right???

I would have thought they would have to calculate based on 80% of my annual salary for the past 52 weeks, and not take into account the part time top up that they were already paying me?? surely they can't say my salary was less, because they paid some of it??
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The entitlement of earnings compensation has absolutely nothing to do with what you have been earning subsequent to your injury and incapacity to earn prior to your injury. Any money that you learn after your injury only provides the ACC with a discount by way of abatement of earnings. This avoids you double dipping.

So in short your earnings compensation entitlement is based on 80% of your preinjury earnings and if your injury is permanent under the old scheme it is calculating on your projected earnings had you not been injured. Forget about what you have been earning since as that has nothing to do with the base calculation of earnings compensation entitlements.

You should be looking at the legislation rather than what you perceive to be fair. If you don't think the legislation is fair then you need to be talking to a member of Parliament to get the act changed.
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#7 User is offline   doppelganger 

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Posted 10 April 2020 - 12:42 PM

View PostAlan Thomas, on 18 November 2019 - 11:44 AM, said:

As you come under the 1982 legislation the ACC will have been required to determine you were permanently incapacitated to return to preinjury occupation. This means that you are already permanently medically retired so a new decision does not need to be made.

.



You are incorrect as to the 1982 Act

Incapacity under the 1972 and 1982 Acts meant Partially or fully incapacitated and was not related to being able to work in your pre-injury occupation.

From 1992 onwards it Incapacity is related to the employment at the time of injury.
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#8 User is offline   doppelganger 

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Posted 10 April 2020 - 01:38 PM

View PostSammy5570, on 07 April 2020 - 12:04 PM, said:

Hello again,
Well I did get retired and am now on weekly compensation. However, they have calculated it based on earnings from 2012, when I started working part time, rather than on my annual salary at the time I stopped working altogether. As I have worked hard and had promotion in that 8 year period, they are assessing me on almost 30K less than my annual salary at the time I left.... surely this is not right???

I would have thought they would have to calculate based on 80% of my annual salary for the past 52 weeks, and not take into account the part time top up that they were already paying me?? surely they can't say my salary was less, because they paid some of it??
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The Legislation from 1992 is taken is taken from the time of the accident. This was a deliberate act on the injured because the dumb arse who though of this knew that this would cause hardship to the injured especially when they had to retire early due to there injuries.

The 1972 and 1982 Act was different as there is a section in there telling that if the loss of earnings happens some time the accident then the Corporation was liable to modify and update the loss to what the claimant would be earning as if the accident never happened.

History lesson here

After the second world war there was a number of injured. New Zealand had a high success rate of having injured persons rehabilitated. The Government of the day employed special persons to do this. They all could think and asked the question What do you think you can do taking into consideration of your injury? They also found that the injured knew how to reduce the incapacity and only stopped modifying the work placed when they retired.

They also found that a number of person had to retire at an early age on a full disability allowance. if they did not continue there wage at the time of retirement that placed the family into financial hardship. This caused a greater cost on the Government through loss of secure housing, independent living, and greater cost on the health system. Most of these persons ended up in some part time job or worked for them selves knowing that they have the injury disability benefit to fall back on when they were not able to earn. This was a percentage of there earnings.

In 1972 it cost about 20% of your earnings to get to and from work. Hence the 80%.

So yes they are right if your accident was after the 1992 Act came into force, no they are not correct if you did not have your accident in 2012. Not 30 years from today.
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#9 User is offline   Alan Thomas 

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Posted 10 April 2020 - 05:13 PM

View Postdoppelganger, on 10 April 2020 - 12:42 PM, said:

You are incorrect as to the 1982 Act

Incapacity under the 1972 and 1982 Acts meant Partially or fully incapacitated and was not related to being able to work in your pre-injury occupation.

From 1992 onwards it Incapacity is related to the employment at the time of injury.


It would be useful to check the legislation before you make your postings.

The first two versions of the ACC legislation required ACC to make a determination as to whether or not a person was temporarily or permanently incapacitated, by way of their injuries, to earn in there occupation for the year prior to the accident. There was no capacity for ACC to fund rehabilitation into a new occupation under these two versions of the ACC legislation. if someone was permanently incapacitated they would then be effectively retired on compensation. In the event that they took up a new occupation within their capacity, while having regard for their injuries and managed to generate earnings they will still be entitled to their earnings compensation as per usual but ACC would be able to obtain a discount from the earnings compensation based on a percentage of their earnings.


From 1992 onward the ACC were required to fund medical rehabilitation prior to considering any vocational rehabilitation in a new occupation. In the event that vocational rehabilitation In the event that vocational rehabilitation funding was made there had been a limit of only three years for ACC to achieve a new occupation otherwise the ACC was prevented from making a determination as to a capacity to work in a new occupation from that point on.

Like the previous legislation the claimant would retain the rights to generate earnings in anyway they thought applicable while having regard for their injuries with the ACC only being permitted to calculate an abatement of earnings.

Doppelganger it does appear that you and others have become confused as to what is expected of them and what the legislation actually says as a result of the ACC failing to clearly define their responsibilities in these matters. Even worse the ACC have failed to comply with the legislation by informing the payments as to the legislative criteria in these matters. I trust this very brief outline assist you in these matters.
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#10 User is offline   doppelganger 

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Posted 11 April 2020 - 03:32 PM

Well Alan this is the Legislation under the 1982 Act

``Incapacitated'' means suffering from total or partial incapacity; and ``incapacity'' has a corresponding meaning.

Purpose of the Act

26. Purposes and scope of Act---(1) The purposes of this Act shall be--(a) To promote safety, including occupational health: (B)/> To promote the rehabilitation of persons who suffer personal injury by accident: © To make provision for the compensation of persons who suffer personal injury by accident and certain dependants of those persons where death results from the injury.
(2) Subject to this section,--(a) All persons who suffer personal injury by accident in New Zealand; and (B)/> To the extent specified in sections 30, 31, and 32 of this Act, all persons who suffer personal injury by accident outside New Zealand,--
shall have cover under this Act if the accident occurred on or after the 1st day of April 1983.

SAFETY AND REHABILITATION
35. Corporation to promote general safety--(1) It shall be a matter of prime importance for the Corporation to take an active and co-ordinating role in the promotion of safety in all the different areas where accidents can occur in New Zealand.
(2) In so promoting safety the Corporation shall be concerned to-- (a) Avoid human suffering; and (B)/> Prevent wastage of manpower and so assist efficiency and productivity.
(3) The Corporation shall establish close and harmonious working relationships with industry, commerce, Government departments, local authorities, and other bodies and organisations in promoting safety and preventing personal injury by accident, and for this purpose shall develop a safety programme, and may appoint a committee under section 16 of this Act.
(4) The functions of the Corporation in relation to the promotion of safety shall include-- (a) Stimulating and maintaining interest in safety and the prevention of personal injury by accident: (B)/> Publishing and disseminating safety literature and information: © Sponsoring, assisting, and conducting safety campaigns, exhibitions, and courses: (d) Sponsoring, supporting, and fostering organisations and groups concerned with safety and the prevention of personal injury by accident: (e) Researching into causes, incidence, costs, and methods of prevention of personal injury by accident: (f) Determining the requirements in respect of, and providing or arranging for provision to be made for, the adequate recording of statistical information concerning personal injury by accident: (g) Seeking continuously for new ways to reduce the number and severity of accidents and personal injuries in all fields.
(5) The Corporation (in consultation with the Standards Council or any other appropriate authority) may consider and, if it thinks fit, support or recommend legislation, regulations, bylaws, and codes of practice calculated to promote safety and to prevent personal injury by accident.
(6) The Corporation may consider the extent to which safety may be promoted and personal injury by accident prevented, by fiscal and other measures in relation to training in safety, the cost of safety equipment, and similar matters, and may make such recommendations as it considers desirable through the Minister to the appropriate authorities on such matters.
(7) The Corporation may make recommendations as to alterations of statutory responsibilities and reallocation of functions, as between Government departments, local authorities, and other bodies, in relation to the promotion of safety and the prevention of personal injury by accident. Any such recommendations may be made-- (a) To the Government departments, local authorities, and other bodies concerned; or (B)/> Through the Minister to the appropriate authorities.


36. Corporation to promote rehabilitation--(1) The Corporation shall place great stress upon rehabilitation and shall take all practicable steps to promote a well co-ordinated and vigorous programme for the medical and vocational rehabilitation of persons who have cover and who become incapacitated as a result of personal injury by accident and are for the time being in New Zealand.
(2) The rehabilitation programme in relation to those persons shall have as its objectives-- (a) Their restoration as speedily as possible to the fullest physical, mental, and social fitness of which they are capable, having regard to their incapacity; and (B)/> Where applicable, their restoration to the fullest vocational and economic usefulness of which they are capable; and © Where applicable, their reinstatement or placement in employment.
(3) Notwithstanding subsection (1) of this section, where an earner suffers personal injury by accident outside New Zealand and has cover in respect of the injury, the Corporation, after having regard to all the circumstances, may, in its discretion, make provision for the rehabilitation outside New Zealand of that person to such extent and on such terms and conditions as it thinks fit. Cf. 1972, No. 43, s. 48

and of course
37. Functions of Corporation in relation to promotion of rehabilitation--(1) In the discharge of its functions in relation to rehabilitation the Corporation shall-- (a) Establish close and harmonious working relationships with Government departments, Hospital Boards, and other bodies and organisations concerned with the rehabilitation of incapacitated persons, and with the professions of medicine and dentistry and occupations auxiliary to those professions: (B)/> Co-operate with and use the services provided by Government departments, Hospital Boards, and other bodies, organisations, and professions to the maximum extent possible: © Promote and help to organise the provision by them of all services necessary for the discharge of the Corporation's functions: (d) Co-operate with all of them, and support, stimulate, and foster their interest and activities in rehabilitation: (e) Stimulate, support, and foster the establishment of additional facilities where it considers that they are needed: (f) Sponsor, support, or foster any organisation or group concerned with rehabilitation: (g) Consider the extent to which rehabilitation may be promoted by fiscal and other measures in relation to rehabilitation training, re-employment, the cost of training equipment, and similar matters and make such recommendations as it considers desirable through the Minister to the appropriate authorities on such matters.
(2) For the purpose of promoting rehabilitation under section 36 of this Act or for exercising all or any of its functions under subsection (1) of this section, the Corporation may, if it thinks fit, appoint a committee under section 16 of this Act.
(3) Without limiting any of its other functions, the Corporation shall, in relation to the rehabilitation of persons who are for the time being in New Zealand, have the functions of-- (a) Ensuring the re-establishment in their previous employment where possible of incapacitated earners: (B)/> Ensuring the training or retraining of incapacitated earners who cannot be so reinstated, so that they may secure other employment suited to their maximum capacity: © Assisting, where it considers appropriate, the development of the skills and talents of persons (other than earners) who suffer personal injury by accident so that they may secure employment suited to their maximum capacity: (d) For the purposes of the foregoing provisions of this section,-- (i) Seeking the making of special arrangements for incapacitated persons to whom any of those provisions apply, whether individually or generally, concerning examinations, the completion of apprenticeships, or the obtaining of training or of practical experience necessary or desirable for the purpose of qualifying for entrance into any employment or occupation: (ii) Ensuring the granting, where it considers this justified, of financial assistance to incapacitated persons to whom any of those provisions apply during any period of desirable training or education in cases where no earnings related compensation is payable, or where (having regard to the circumstances of the persons) the cost of the training or education is beyond the financial resources of the persons: (iii) Ensuring the granting, where it considers this justified, of financial assistance towards the expenses of incapacitated persons to whom any of those provisions apply in cases where the persons are required to reside away from their ordinary places of residence for a period or periods while undertaking any such training or education: (iv) Stimulating, supporting, and fostering any additional educational, training, or other facilities which it considers necessary for the adequate development of its rehabilitation service: (e) Adapting or assisting with the adaptation of the home or residence of any incapacitated person who has cover in respect of the personal injury which caused his incapacity where, in the opinion of the Corporation, the adaptation or assistance will assist the rehabilitation of an incapacitated person: Provided that any such adaptation shall be made in consultation and co-operation with the body responsible for the institution where he is maintained:
(f) Ensuring the provision (where needed) of a wheelchair or other aid for daily living for any person incapacitated through personal injury by accident: (g) Adapting or assisting with the adaptation or purchasing or assisting with the purchase of a motor vehicle where, in the opinion of the Corporation, the adaptation or purchase will assist the rehabilitation of an incapacitated person, or will improve his earning capacity: (h) Providing for the dissemination of information for the purposes of advice and education in connection with rehabilitation.
(4) The Corporation shall-- (a) Evaluate the availability and effectiveness of services for the rehabilitation of persons who have become incapacitated through personal injury by accident: (B)/> Inquire into instances where the treatment for the purposes of the rehabilitation of any such person appears to have been less than fully effective, and recommend to the appropriate authority corrective action when indicated.
(5) The Corporation may-- (a) Conduct studies and issue reports on the rehabilitative aspects of the progress of persons who have such cover: (B)/> Conduct research into or arrange for research to be conducted into aspects of rehabilitation. Cf. 1972, No. 43, ss. 49, 50; 1973, No. 113, s. 16; 1975, No. 136, s. 5

May be I have missed a bit of the legislation and may be you could point to the section that Medical Treatment must be completed before rehabilitation can commence.

The person who started this thread has an injury and may be needs ongoing medical treatment. Its clear he has worked improved his skills, increased his earning capacity and may still need medical treatment therefore as you claim he should not have completed any employment. You sound like a ACC appointed Lawyer or even some reviewer.

Here is the section that is in the 1982 Act and was removed due to abuse by the Corporation staff

(9) Where any period of an earner's incapacity for work does not commence on the date of the
accident, and the Corporation is of the opinion that relevant earnings ascertained in accordance with
the foregoing provisions of this section do not fairly and reasonably represent the earner's normal
average weekly earnings at the time of the commencement of the period of incapacity for work, the
Corporation may, notwithstanding the foregoing provisions of this section, determine an amount
which, in its opinion, would fairly and reasonably represent his normal average weekly earnings at
the time of the commencement of the period of incapacity for work, having regard to such
information as it may obtain regarding his earnings before the time of the commencement of the
period of incapacity for work and his earnings at the time of the commencement of that period, and
the period of his residence in New Zealand before the time of the period of incapacity for work and
his work history, and such other relevant factors as the Corporation thinks fit; and any amount so
determined shall be treated as if it was his relevant earnings for the purpose of assessing earnings
related compensation during the particular period of incapacity for work:
Provided that any determination made under this subsection shall not bind or prejudice the
Corporation or limit or restrict its discretions or powers with regard to any assessment or
determination of that person's relevant earnings or loss of earning capacity during any other period
of his incapacity for work to which the determination does not relate.

I think it explains what I said very well.
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#11 User is offline   doppelganger 

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Posted 11 April 2020 - 03:34 PM

Now for the section ACC are using under the current Act.

48 Effect of further injury on entitlement to weekly compensation
(1) This clause applies to a claimant who—
(a) is already entitled to receive weekly compensation; and
(B)/> suffers incapacity from a further personal injury for which the claimant
has cover under this Act.
(2) If it is necessary to recalculate the claimant’s entitlement to weekly compensation,
the claimant’s entitlement to weekly compensation in respect of incapacity from both personal injuries is calculated using the weekly earnings assessed
when calculating the weekly compensation referred to in subclause
(1)(a).
(3) Subclause (2) does not apply to any subsequent periods of incapacity.

So Allan it seams that ACC got the change to disadvantage a person who does not follow ACC or Your Rehabilitation plan.
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#12 User is offline   doppelganger 

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Posted 11 April 2020 - 04:43 PM

View PostAlan Thomas, on 10 April 2020 - 05:13 PM, said:



From 1992 onward the ACC were required to fund medical rehabilitation prior to considering any vocational rehabilitation in a new occupation. In the event that vocational rehabilitation In the event that vocational rehabilitation funding was made there had been a limit of only three years for ACC to achieve a new occupation otherwise the ACC was prevented from making a determination as to a capacity to work in a new occupation from that point on.




Now lets see if ACC has to fund Medical Rehabilitation before considering any Vocational Rehabilitation

The Currect Act is as;

treatment includes—
(a) physical rehabilitation:
(b) cognitive rehabilitation:
© an examination for the purpose of providing a certificate including the provision of the certificate.

We take note that ACC assessors are excluded in the supply of treatment.


there us the Acute Treatment

Acute treatment
Acute treatment, in relation to a claimant, means—
(a) the first visit to a treatment provider for treatment for a personal injury for which the claimant has cover; and
(b) the following treatments if, in the treatment provider’s reasonable clinical judgment, the need for the treatment is urgent (given the likely clinical effect on the claimant of any delay in treatment):
(i) any subsequent visit to that treatment provider for the injury referred to in paragraph (a); and
(ii) any referral by that treatment provider to any other treatment provider for the injury referred to in paragraph (a).

Now this is before any Vocational Rehabilitation is to be considered. the fact that this is supplied before the consideration of Vocational Rehabilitation is not surprising.

It should also cover this section

50 Responsibilities of Corporation after claim lodged
(1) On receiving a claim for cover under section 48 from a person, the Corporation
must—
(a) decide whether or not it accepts that the person has cover; and
(b) if it accepts that the person has cover,—
(i) provide information about the entitlements to which it considers
the claimant may be entitled; and
(ii) facilitate the claimant’s access to those entitlements.
(2) If the claim is for cover for a treatment injury, the Corporation must provide the
claimant with information on the role of the Health and Disability Commissioner
under the Code of Health and Disability Services Consumers’ Rights.

Now what the claimant should get

69 Entitlements provided under this Act
(1) The entitlements provided under this Act are—
(a) rehabilitation, comprising treatment, social rehabilitation, and vocational
rehabilitation:
(b) first week compensation:
© weekly compensation:
(d) lump sum compensation for permanent impairment:
(e) funeral grants, survivors’ grants, weekly compensation for the spouse or
partner, children and other dependants of a deceased claimant, and child
care payments.

It still does not say that ACC has to fund medical rehabilitation before Vocational Rehabilitation can commence.

Individual rehabilitation plan
75 Corporation to determine need for rehabilitation plan
Within 13 weeks after the Corporation accepts the claimant’s claim for cover,
the Corporation—
(a) must—
(i) determine whether the claimant is likely to need social or vocational
rehabilitation after the 13 weeks have ended; and
(ii) if so, prepare an individual rehabilitation plan in consultation with
the claimant; and
(b) may include in the plan provision for treatment.

The Rehab plan may include the provision for treatment, but any treatment does not need to be included, but we all know ACC staff can not read.

Still not as you claim.


76 Provision of rehabilitation before and after individual rehabilitation plan agreed.

(3) To avoid doubt, subsections (1) and (2) do not prevent the provision of treatment
before an individual rehabilitation plan is agreed.


It looks like Treatment can be supplied before and after a rehabilitation plan.

this is a bit of a side issue but still will be considered.
(3) The Corporation may decline to provide any entitlement for as long as the
claimant unreasonably refuses or unreasonably fails to—

(b) undergo medical or surgical treatment for his or her personal injury, being
treatment that the claimant is entitled to receive; or

Take note the word unreasonable is there meaning the claimant can decline surgical treatment if it is not necessary.

I could add clause 1 to 6 of schedule 1 here but it shows that treatment cost does not need to be supplied before considering medical rehabilitation.

But clause 6 is as

6 When Corporation must not decline to pay cost of treatment
(1) The Corporation must not decline to pay the cost of a claimant’s treatment because—
(a) the claimant has not paid or refuses to pay any part of the treatment provider’s fee that is a part that the Corporation is liable to pay:
(b) the claimant has not agreed to get the treatment from a particular treatment provider, unless the treatment is an assessment required by this Act
or a second opinion.
(2) To assist a claimant in choosing a treatment provider, the Corporation may advise the claimant that treatment from a named treatment provider will result in the claimant contributing less or nothing to the cost of treatment.
(3) Subclause (2) applies subject to subclause (1)(b).
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#13 User is offline   Alan Thomas 

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Posted 12 April 2020 - 03:43 PM

Doppelgänger you seem to be totally oblivious to the fact that it was not until 1992 that legislation introduced the concept that a person, because of their injuries, prevented from earning in the traditional occupation could receive funding from ACC to rehabilitate into a new occupation which was the concept of vocational rehabilitation. At the same time legislation required the ACC to produce regulations to determine at what stage of the process the individual concerned would be rehabilitated into that new occupation and the ACC no longer liable to a earnings compensation.

Under the legislation prior to 1992 the ACC was required to fund medical treatment to return the claimant to his preinjury occupation. This comes under section 59 of the 1982 act. If it was determined that either medical treatment could not return the claimant was preinjury occupation and that the incapacity was going to be permanent in as much as the claimant was never going to go back to their original occupation then they were determined to be permanently incapacitated to go back to the old job. This comes under section 60.

At this stage of the game the originator of this topic is concerned with section 60, the permanent incapacity to return to the preinjury occupation. Under section 60 the injured person is deemed to be retired from the workplace with guaranteed earnings compensation for the rest of their life.

In the event that such a person of which section 60 applies does engage in work activity resulting in earnings in the ACC would be entitled to an abatement of earnings compensation in relation to those earnings.


The transition between the pre-1992 legislation and the legislation subsequent to that date continues much the same under section 59 of the 1982 legislation through into section 37 of the 1992 legislation. However the concept of permanent disability to return to the preinjury occupation effectively meaning the person would be retired on a permanent pension in accordance with section 60 was replaced with the notion that ACC would be able to reduce their liabilities by way of section 51 of the 1992 legislation which means ACC would need to fund a claimant with regards to re-education and experience in order to qualify for opportunities to enjoy earnings in a new occupation. This was to be tested by way of regulations that the ACC was required to produce. As the ACC failed to produce any legislation as directed under the 1992 legislation until 1997 or claimants of which the ACC asserted a capacity to work and when you occupation have no basis in law and should now make claim for reinstatement of their claims and entitlements



Doppelgänger I trust this now clarifies matters for you.
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#14 User is offline   doppelganger 

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Posted 13 April 2020 - 12:13 AM

Just to clarify the section 59 in relationship to as the Act states it has nothing to do with what you say.

59. Earnings related compensation after first week for temporary loss of earning capacity---
(1) Where, as a result of incapacity due to personal injury by accident, an earner suffers any
temporary loss of earning capacity as determined under the provisions of this section during any
period after the expiration of the working week comprising the day of the accident and the 6 days
thereafter, the Corporation shall pay him earnings related compensation in respect of that loss at the
rate of 80 percent of the amount of his loss of earning capacity due to the injury.
(2) For the purposes of this section, an earner's temporary loss of earning capacity due to the
injury shall, subject to this section, be determined by deducting from the amount of his relevant
earnings for a like period the aggregate of the amount of his earnings as an employee (if any) and
the amount of his earnings as a self-employed person (if any) during the period:
Provided that if the Corporation considers, having regard to the medical and other evidence
available to it, that the earner is---
(a) Not endeavouring to work or earn in paid employment to the extent of his capacity; or
(B)/> Not working or earning in paid employment to the extent to which he would be able to do so if
the only factor affecting his ability to work or earn in paid employment were his incapacity for
work due to the injury,---
the Corporation may fix the amount to be so deducted at such figure as it considers appropriate.
S59(2) proviso. RPLD & SUBSTD (as from its commencement ) by s. 9 of 1985 No 66 as
follows:--
“Provided that in so fixing the amount to be deducted the Corporation may, in its discretion, in
any particular case, disregard all or any part of the earnings received by an earner in the course
of his reinstatement or placement in employment for the purpose of his rehabilitation puruant to
section 37 of this Act.”
(3) Where after an accident, a self-employed person changes the
accounting procedures or methods used to determine his earnings as a
self-employed person so that his earnings after the accident are thereby
reduced and his temporary loss of earning capacity is in consequence
increased, the Corporation shall, unless it consents in writing to such
changes, disregard the changes for the purpose of calculating the amount
of earnings related compensation, and make its assessment of his
temporary loss of earning capacity on the basis of the procedures and
methods being used prior to the accident.
(4) If, as a result of the incapacity due to the injury, an employee
is unable to work in employment as an employee for any period and his
employer pays him earnings as an employee for that period, then, if---
(a) The amount so paid; and
(B)/> The amount of earnings related compensation which would have been
payable, in accordance with the foregoing provisions of this
section, in respect of his loss of earning capacity as an
employee for that period if the employer had made no such
payment---
are together in excess of what would have been the amount of his loss of
earning capacity as an employee for that period if the employer had made
no such payment, the amount of earnings related compensation payable to
him for that period shall be determined by deducting the amount of that
excess from the amount of earnings related compensation which would have
been payable for that period if the employer had made no such payment.
(5) Notwithstanding the foregoing provisions of this section, where it
is likely that the commencement of the payment of earnings related
compensation under this section for any period will be unduly delayed on
account of difficulties or uncertainties which may arise in ascertaining
the amount of the relevant earnings of the incapacitated person or his
earnings as an employee or as a self-employed person during that period,
the Corporation, in its discretion, may do all or any of the following:
(a) The Corporation may, having regard to the evidence which is
presently available, determine a person's loss of earning
capacity for any period of his incapacity at such amount as it
considers will provide fair and just compensation without being
required to make assessments of relevant earnings and actual
earnings:
Provided that any such determination shall not bind or
prejudice the Corporation or limit or restrict its powers with
regard to any determination of that person's loss of earning
capacity during any part of the period of his incapacity to
which the determination does not relate:
(B)/> Where the Corporation has not received sufficient evidence to
enable it to determine the relevant earnings or actual earnings
of any person for any period it may make an interim
determination of the person's relevant earnings or actual
earnings, as the case may be, for the period, having regard to
other evidence that it has received in respect of that person
(whether for that period or any other period) and to all
relevant circumstances, and may make payments to the person on
account under subsection (1) of this section for such period and
at such rate as the Corporation thinks fit:
Provided that the rate shall not exceed 50 percent of the
earnings related compensation for the time being as ascertained
by reference to an interim determination of the person's
relevant earnings or actual earnings as aforesaid:
Provided also that any payments of earnings related
compensation made by the Corporation under this paragraph in
excess of the proper entitlement under subsection (1) of this
section shall constitute a debt due to the Corporation which may
be recovered by the Corporation in accordance with section 114
of this Act.
(6) Where an employee suffers personal injury by accident and would be
entitled to earnings related compensation under this section for any
loss of earning capacity as an employee, and his employer desires or is
obliged to pay to him any earnings as an employee for that period in
excess of his earnings for time worked by him for that employer during
that period, the Corporation may, at its sole discretion and subject to
such terms and conditions as it may think fit to impose, reimburse the
employer for any portion of the earnings as an employee (in excess of
earnings for time worked, if any) so paid for that period which the
Corporation considers to be appropriate in the circumstances, and, to
the extent that such reimbursement is made, the Corporation shall be
relieved and discharged from any liability to pay earnings related
compensation to the employee for that period:
Provided that the amount so reimbursed shall not in any circumstances
exceed the amount of earnings related compensation that would have been
payable for the period if no earnings as an employee had been paid to
him for the period.
(7) Where any earner derives earnings from carrying on a business or
doing other work during any period, and the amount so earned on each day
throughout the period cannot be otherwise determined, for the purposes
of this section the amount of those earnings in that period shall be
deemed to have been derived at a uniform daily rate throughout the
period.
(8) Notwithstanding section 52 of this Act, where a person's earnings
include an allowance of any of the kinds referred to in section 72 of
the Income Tax Act 1976, the Corporation may, for the purpose of
assessing the award of earnings related compensation payable to that
person, determine the value of that allowance at such amount as it
considers would be a fair assessment of the proper worth of the
allowance.
(9) Except as provided in sections 53 (5) (a), 63, and 69 of this Act,
no earnings related compensation shall be payable under this section to
a person who suffers personal injury by accident unless he was an earner
at the time of the accident.
(10) Notwithstanding anything in this section, the weekly amount of
earnings related compensation for the time being payable to any person
in accordance with this section shall not exceed $600, or such other
maximum amount as may from time to time be specified for the purposes of
this section by the Governor-General by Order in Council.
Cf. 1972, No. 43, s. 113; 1973, No. 113, s. 43; 1974, No. 71, s. 7;
1975, No. 136, s. 18; 1978, No. 36, s. 8; 1981, No. 38, s. 2 (b

But I will highlight you to the relevant section you keep harping on about

Provided that if the Corporation considers, having regard to the medical and other evidence
available to it, that the earner is---
(a) Not endeavouring to work or earn in paid employment to the extent of his capacity; or
(B)/> Not working or earning in paid employment to the extent to which he would be able to do so if
the only factor affecting his ability to work or earn in paid employment were his incapacity for
work due to the injury,---
the Corporation may fix the amount to be so deducted at such figure as it considers appropriate


Or may be the unmodified part.

S59(2) proviso. RPLD & SUBSTD (as from its commencement ) by s. 9 of 1985 No 66 as
follows:--
“Provided that in so fixing the amount to be deducted the Corporation may, in its discretion, in
any particular case, disregard all or any part of the earnings received by an earner in the course
of his reinstatement or placement in employment for the purpose of his rehabilitation puruant to
section 37 of this Act.”


take note of the words

placement in employment for the purpose of his rehabilitation

there is no word preinjury in that section stating or relating only to preinjury employment.
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#15 User is offline   doppelganger 

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Posted 13 April 2020 - 12:29 AM

 Alan Thomas, on 12 April 2020 - 03:43 PM, said:



Under the legislation prior to 1992 the ACC was required to fund medical treatment to return the claimant to his preinjury occupation. This comes under section 59 of the 1982 act. If it was determined that either medical treatment could not return the claimant was preinjury occupation and that the incapacity was going to be permanent in as much as the claimant was never going to go back to their original occupation then they were determined to be permanently incapacitated to go back to the old job. This comes under section 60.

At this stage of the game the originator of this topic is concerned with section 60, the permanent incapacity to return to the preinjury occupation. Under section 60 the injured person is deemed to be retired from the workplace with guaranteed earnings compensation for the rest of their life.

In the event that such a person of which section 60 applies does engage in work activity resulting in earnings in the ACC would be entitled to an abatement of earnings compensation in relation to those earnings.




Section 60 is different

60. Assessment of permanent incapacity---(1) Where an earner who
suffers personal injury by accident does not completely recover from his
incapacity due to the accident, as soon as the Corporation considers
that (so far as the consequences of the injury are concerned) his
medical condition is stabilised and all practicable steps have been
taken towards his retraining and rehabilitation,
the Corporation shall
review his case and make an assessment in writing of---


Unlesss the highlighted section is completed section 60 did not apply.

An Application in writing to be made before a certain date or no section 60 was granted.

Tomorrow I will complete the transaction like I had done preciously on this forum.

This will show that you know the legislation about as well as ACC employees, their appointed reviewers, Their appointed Lawyers, and their appointed assessors.
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#16 User is offline   Alan Thomas 

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Posted 13 April 2020 - 11:47 AM

Quite obviously there is no need to address those with a temporary incapacity to return to their original occupation as anything longer than X months automatically required the ACC to determine whether or not the claimant is in the permanent incapacity segment to return to their original occupation, section 60.

The problem is ACC routinely resisted carrying out the section 60 assessment and use this as a mechanism to avoid liability which might be the problem the author of this thread has encountered with the result that the whole area has fallen into muddy water. This muddy water is where ACC actively plan to place such people so as they become very confused and disorientated. Nonetheless the enforcement of section 60 is the way forward.

One of the main reasons the ACC rely upon to avoid compliance with legislation and carry out a determination under section 60 is the assertion that the condition has not yet stabilised. While acknowledging the claimant cannot return to their preinjury occupation and the claimant's condition continued to deteriorate through lack of medical treatment the ACC have asserted that the claimant's iinjuries have not yet stabilised. Of course when they die the condition is stable.


It is reasonable to assume that if a claimant cannot return to their preinjury occupation after 30 or 40 years that their capacity to return to that job is deemed stable.

The other technique that the ACC has relied upon as to ignore the claimant in the hope that they attempt to work on a new occupation and regardless as to whether or not they have successfully accomplished this the ACC have disregarded their liabilities on the basis that the person has been "working" even though there has been no earnings. The question therefore arises as to whether or not "working" with the without earnings forms the legal basis for the ACC to claim that the person is no longer incapacitated. Remember of course that the criteria is incapacitated to therein as opposed to work. The ACC has succeeded in confusing many people in this regard.

Of course what is useful as the ACC corporations instructions to their own staff on these matters. Just prior to the 1992 legislation coming out the ACC provided their staff with an instruction manual. I'm not sure whether or not they never gave this instruction manual to any of their staff as none of the staff I've ever encountered, including those I cross-examined in court, had ever heard of this manual. Nonetheless the corporation has acknowledged the legislative criteria in the manual along with a variety of case law that set down and confirmed the legislated and decision-making criteria.

There is not much point trying to make decisions in the manner that ACC staff from the decisions is quite obviously the ACC Corporation has cold heartedly and deliberately kept their decision-making staff ignorance of the duties and comes to administering the law in accordance with the legal criteria. In other words the corporation has ensured that their staff remain ignorant to avoid any kind of criminal repercussions concerning decisions that have been made wrong due to the fact that if someone knowingly produced documents with regards to a wrong decision would be committing insurance fraud. Therefore we also must be careful not to take the advice of the variety of ACC supporters that we see making postings on this site.








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#17 User is offline   doppelganger 

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Posted 13 April 2020 - 06:15 PM

 Alan Thomas, on 13 April 2020 - 11:47 AM, said:

Quite obviously there is no need to address those with a temporary incapacity to return to their original occupation as anything longer than X months automatically required the ACC to determine whether or not the claimant is in the permanent incapacity segment to return to their original occupation, section 60.

It is about supplying entitlements to those who have an incapacity and a loss of earnings. It doesn't matter if it is temporary or permanent.
The PURPOSE is that the Corporation is to assist as best as possible to make sure the claimant was earning to there maximum capacity.
It is clear that the claimant incapacity did not cause a loss of earnings until 2012.

 Alan Thomas, on 13 April 2020 - 11:47 AM, said:

The problem is ACC routinely resisted carrying out the section 60 assessment and use this as a mechanism to avoid liability which might be the problem the author of this thread has encountered with the result that the whole area has fallen into muddy water. This muddy water is where ACC actively plan to place such people so as they become very confused and disorientated. Nonetheless the enforcement of section 60 is the way forward.

your reason for not completing the section 60 assessments is floored. in the later 70's ACC staff were threatened to have charges brought against them.
(B) Wilfully or recklessly makes and delivers to the Corporation or any agent of the
Corporation any false statement, or gives any false information to, or misleads or attempts
to mislead, the Corporation or any agent, committee, officer, or employee of the
Corporation in relation to any matter or thing affecting his own or any other person's
liability to pay any levy, or right to claim rehabilitation assistance or compensation, under
this Act; or
© Aids, abets, or incites any other person to commit any offence against this Act or against
any regulations made thereunder.

 Alan Thomas, on 13 April 2020 - 11:47 AM, said:

One of the main reasons the ACC rely upon to avoid compliance with legislation and carry out a determination under section 60 is the assertion that the condition has not yet stabilised. While acknowledging the claimant cannot return to their preinjury occupation and the claimant's condition continued to deteriorate through lack of medical treatment the ACC have asserted that the claimant's iinjuries have not yet stabilised. Of course when they die the condition is stable.



 Alan Thomas, on 13 April 2020 - 11:47 AM, said:


It is reasonable to assume that if a claimant cannot return to their preinjury occupation after 30 or 40 years that their capacity to return to that job is deemed stable.


 Alan Thomas, on 13 April 2020 - 11:47 AM, said:


The other technique that the ACC has relied upon as to ignore the claimant in the hope that they attempt to work on a new occupation and regardless as to whether or not they have successfully accomplished this the ACC have disregarded their liabilities on the basis that the person has been "working" even though there has been no earnings. The question therefore arises as to whether or not "working" with the without earnings forms the legal basis for the ACC to claim that the person is no longer incapacitated. Remember of course that the criteria is incapacitated to therein as opposed to work. The ACC has succeeded in confusing many people in this regard.


 Alan Thomas, on 13 April 2020 - 11:47 AM, said:

Of course what is useful as the ACC corporations instructions to their own staff on these matters. Just prior to the 1992 legislation coming out the ACC provided their staff with an instruction manual. I'm not sure whether or not they never gave this instruction manual to any of their staff as none of the staff I've ever encountered, including those I cross-examined in court, had ever heard of this manual. Nonetheless the corporation has acknowledged the legislative criteria in the manual along with a variety of case law that set down and confirmed the legislated and decision-making criteria.

the Government of the time did not think it would be a good idea. The Government don't understand that each staff is responsibly for their own actions and therefore they each knew of there obligations They stopped section 60 to prevent the false statements ACC were making as most if not all had not completed any Vocational Rehabilitation.

 Alan Thomas, on 13 April 2020 - 11:47 AM, said:

There is not much point trying to make decisions in the manner that ACC staff from the decisions is quite obviously the ACC Corporation has cold heartedly and deliberately kept their decision-making staff ignorance of the duties and comes to administering the law in accordance with the legal criteria. In other words the corporation has ensured that their staff remain ignorant to avoid any kind of criminal repercussions concerning decisions that have been made wrong due to the fact that if someone knowingly produced documents with regards to a wrong decision would be committing insurance fraud. Therefore we also must be careful not to take the advice of the variety of ACC supporters that we see making postings on this site.


I gathere that you are taking about your self in the misinformation . Your first post on this thread is misinformation, but you are not prepared to learn from your mistakes.
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#18 User is offline   Alan Thomas 

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Posted 13 April 2020 - 09:25 PM

Doppelgänger of course it is fruitless for you to be arguing points of principle, behaviour of the ACC or any kind of injustices that you might perceive.
What matters is what the legislation actually states in the form of criteria for purposes of determining entitlement. Everything else is actually irrelevant.

I've already explained to you that if the person is injured and incapacitated permanently then the claimant is entitled to their earnings compensation from the date of their injury forward. In the event that they do achieve meaningful work and gain earnings for that work that does not in any way or form alter the ACC liability by with legislation regarding the permanent nature of the entitlements. All it means is that the ACC carry out a calculation in accordance with the abatement of earnings legislation right up until 2012 in the case of the author of this thread. Anything else is a corruption of the legislated criteria which provides support to ACC misbehaviour. I therefore strongly urge you to focus your mind and efforts on the obedience to legislative criteria.

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#19 User is offline   Sammy5570 

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Posted 14 April 2020 - 01:28 PM

 Alan Thomas, on 13 April 2020 - 09:25 PM, said:

Doppelgänger of course it is fruitless for you to be arguing points of principle, behaviour of the ACC or any kind of injustices that you might perceive.
What matters is what the legislation actually states in the form of criteria for purposes of determining entitlement. Everything else is actually irrelevant.

I've already explained to you that if the person is injured and incapacitated permanently then the claimant is entitled to their earnings compensation from the date of their injury forward. In the event that they do achieve meaningful work and gain earnings for that work that does not in any way or form alter the ACC liability by with legislation regarding the permanent nature of the entitlements. All it means is that the ACC carry out a calculation in accordance with the abatement of earnings legislation right up until 2012 in the case of the author of this thread. Anything else is a corruption of the legislated criteria which provides support to ACC misbehaviour. I therefore strongly urge you to focus your mind and efforts on the obedience to legislative criteria.


wow! quite overwhelmed by that long list of legislation! I just wanted to check one thing, when I said started working part time in 2012, what I really meant was I reduced from Fulltime to Part time, as due to my injury I wasn't able to manage full time anymore. Does that make a difference to the date they will take compensation from? I would say its fair to assume that my "potential earnings" taken from my accident date in 1988, would be equal to my 'actual earnings"?
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#20 User is offline   Alan Thomas 

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Posted 14 April 2020 - 02:51 PM

 Sammy5570, on 14 April 2020 - 01:28 PM, said:

wow! quite overwhelmed by that long list of legislation! I just wanted to check one thing, when I said started working part time in 2012, what I really meant was I reduced from Fulltime to Part time, as due to my injury I wasn't able to manage full time anymore. Does that make a difference to the date they will take compensation from? I would say its fair to assume that my "potential earnings" taken from my accident date in 1988, would be equal to my 'actual earnings"?


Sammy as you have not provided all the information necessary it is impossible to provide you with any meaningful answer.

When you are injured did it initially prevent you from returning to your original occupation?
Did ACC carry out a determination that you were permanently incapacitated in accordance with section 60 of the 1992 legislation?

If it was determined that your injuries were permanent Under section 60 that means that from that day forward, even if you recovered, you are covered. The purpose of this is in case you again deteriorated as seems to be the case now so as you would have an immediate return to earnings compensation. Throughout the entire period up until now the ACC should have been calculating abatement of earnings with regards to your earnings while permanently incapacitated to earn in your preinjury occupation. I trust this is not too confusing but that is the way the legislation works and the courts have insisted the ACC follow.


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